Alert Digest No. 1 of 1996
Part 2

LEGAL PROFESSION PRACTICE (DIRECT MORTGAGES) BILL

9.1

This Bill was introduced into the Legislative Assembly on 15 May 1996 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

9.2

The purpose of the Bill is to amend the Legal Profession Practice (Amendment) Act 1995 in relation to direct mortgages.

9.3

Clause 3 repeals proposed section 5 of the Legal Profession Practice (Amendment) Act 1995. The proposed section would have imposed certain requirements on solicitors in relation to direct mortgages from 1 July 1996.

The Committee makes no further comment.

ACCIDENT COMPENSATION (AMENDMENT) BILL 1996

10.1

This Bill was introduced into the Legislative Assembly on 15 May 1996 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

10.2

The purpose of the Bill to amend:-

• the Accident Compensation Act 1985; and
• the Accident Compensation (WorkCover Insurance) Act 1993.

10.3 Part 2 - Accident Compensation Act 1985

Clause 3 inserts various definitions. Clause 4 inserts new sections 4A, 4B, 4C, 4D and 4E which ensures that participants in declared training programs are workers for the purposes of the WorkCover scheme. Clause 6 repeals sections 22(6) and 22(7) which relate to employees/officers employed by the Accident Compensation Commission etc. The Committee wrote to the Minister on 23 May 1996 seeking further information. The Minister responded by way of letter dated 27 May 1996. The relevant extract is set out:-

"Section 22 of the Accident Compensation Act 1985 governs the appointment of staff of the Victorian WorkCover Authority.

Sub-sections (6) and (7) of this section are transitional provisions relating to the transfer of staff consequential upon the institutional changes wrought by the Accident Compensation (WorkCover) Act 1992. Amongst other things, that Act abolished the Accident Compensation Commission, the Victorian Rehabilitation Council, the WorkCover Appeals Board and the office of the Complaints Investigator and established the Victorian WorkCover Authority.

Sub-section (6) operated, upon its commencement, to deem all officers and employees of the Commission, Council and Board and those assisting the Complaints Investigator to have been appointed as officers and employees of the Authority under that section on terms and conditions no less favourable than they previously enjoyed and with all benefits previously accrued. Sub-section (7) then operated to give those of such officers and employees who have previously been employed subject to the Public Service Act 1974 a right of election to be exercised within six months, to remain subject to that Act or remain as an officer or employee of the Authority.

I am advised that these transitional provisions have done their work and that the employment of all affected officers and employees is now governed by the Public Sector Management Act 1992 or the Accident Compensation Act 1985 respectively and the associated employment contracts or award/enterprise agreements provisions. I am further advised that any rights accrued by an officer or employee as a result of the operation of the transitional provisions would not be extinguished by their repeal."

Clause 8 increases the monetary limit of the Magistrates' Court in respect of accident compensation claims from $25,000 to $40,000. Clause 10 sets out costs orders which must be made where a direction of a Conciliation Officer is revoked. Clause 11 ensures that if in any County Court proceedings, an outcome is achieved which could have been achieved in the Magistrates' Court, any costs payable are on the Magistrates' Court scale. Clause 12 inserts new section 50A which sets out the costs liability for legal practitioners where proceedings are unduly delayed. Clause 13 clarifies the operation of sections 58, 58A and 63. Clause 15 gives the Convenor and members of Medical Panels the same protection and immunity as a Judge of the Supreme Court.

10.3

Clause 16 amends section 93B(3) in relation to weekly payments. The Committee notes the comments in the Second Reading Speech:-

"Section 93B(3) of the current legislation provides that a worker's entitlement to weekly compensation ceases after the worker has been incapacitated for 104 weeks, unless the worker has a serious injury or is totally and permanently incapacitated, in which case the entitlement continues, in accordance with the Act, to retirement age.

This basis of calculating a worker's long term entitlement to weekly payments is perceived by some as a disincentive for workers to return to work, particularly on modified or alternate duties. Facilitating an early and effective return to work for injured workers is one of the primary goals of the WorkCover scheme. It is important that any disincentives, or perceived disincentives, for workers to return to work as soon as practicable after the injury be removed.

Accordingly, the Bill now provides that a worker's entitlement to weekly payments under that section ceases after the expiry of an aggregate of 104 weeks (whether consecutive or not) in respect of which a weekly payment has been paid or is payable to the worker, unless the worker has a serious injury or is totally and permanently incapacitated. This will remove any perceived disincentive for partially incapacitated workers to return to work on alternative duties during the rehabilitation process."

Clause 17 ensures that the amount of any weekly payment payable to a worker is reduced by the weekly amount of any disability, retirement or superannuation to which the worker becomes entitled. Clause 18 sets out a worker's weekly entitlement where he/she receives a lump sum amount, redundancy, severance or superannuation lump sum. Clause 19 allows limited access by a worker to the contribution component of a rolled-over superannuation lump sum for the purposes of approved expenditure without affecting weekly repayments. Clause 20 inserts new section 96A which sets out notification requirements. Clause 21 inserts new subsection (2AA) which relates to the payment of compensation to workers no longer resident in Australia. Clause 23 provides that the percentage of diminution of hearing as determined by sub-section (2AB) and approved by the Minister on the recommendation of the convenor of the Medical Panels is in force for a period not exceeding 12 months.

10.4

Clause 24 substitutes new section 104 which governs claims for compensation under sections 98 and 98A (compensation for maims, pain and suffering). All disputes must be referred for conciliation. The Conciliation Officer must issue a certificate. Medical reports on which it is intended to rely must be served at the time of making the claim. New section 104A provides that the Minister may issue directions which must be published in the Government Gazette. All parties and practitioners must comply with such directions. Non-compliance has the effect of suspending the claim. The Committee wrote to the Minister on 23 May 1996 seeking his advice as to the mechanism it is proposed to be used to inform applicants of such directions. The Minister responded by way of letter dated 27 May 1996. The relevant extract is set out:-

"The requirement for any directions issued under the proposed section 104A of the Accident Compensation Act 1985 to be published in the Government Gazette is, of course, imposed to ensure that both the fact of issuing of the Directions and their content are publicly available. In addition, it can be expected that the Law Book Company and the CCH would include the substance of any such Directions in their respective loose leaf services. Finally, the Authority has assured me that it will ensure that the substance of any such Directions will be included in its Claims Manual and in advice to authorised insurers and will be published in brochure form and made publicly available."

Clause 25 provides for the reasonable costs of family counselling where death results from injury. Clause 26 provides for the issue of guidelines in respect of the reasonable costs of road accident rescue services, hospitals etc. Clause 27 provides that the Authority or authorised insurer may require a worker to submit to an examination by an independent medical examiner at reasonable intervals. Clause 29 clarifies to whom the worker should apply for settlement of his or her entitlement under the Act. Clause 30 makes a minor amendment. Clause 31 sets out notice requirements with which the Authority must comply.

Clause 32 amends section 135A which relates to actions for damages. The Committee notes the comments in the Second Reading Speech:-

"Clause 32 amends section 135A of the Act so as to make it clear that, except as provided in the amended section, a worker must not commence common law proceedings to which section 135A applies without first obtaining a determination of the degree of his or her impairment for the purposes of that section by the Authority, authorised insurer or self-insurer and, if required, complying with the preliminary procedures outlined in the section.

Decisions by the Supreme Court and, more recently, the Court of Appeal have held that the existing provisions of section 135A do not achieve the Government's original intentions and these amendments are intended to ensure that these are achieved. These amendments will apply in respect of all proceedings commenced on and after the date of their commencement which will be the date of Royal Assent to the Bill."

Clause 33 also amends section 135A. The Committee notes the comments in the Second Reading Speech:-

"Clause 33 of the Bill amends section 135A so as to make it clear that a decision by the Authority, authorised insurer or self-insurer that a worker who has a serious injury for the purposes of section 93B of the Act (relating to the worker's entitlement to weekly payments) is not to be taken to be a determination of the worker's degree of impairment for the purposes of section 135A unless the decision specifically states that it is to be taken to be a determination for those purposes.

It was never the Government's intention that a decision that a worker has a serious injury for the purposes of section 93B would automatically be taken to be a determination of the worker's degree of impairment for the purposes of section 135A. Nevertheless, the Court of Appeal has recently held that this is the case.

This means that an assessment, made for a different purpose and often before the relevant injury has stabilised, will give the relevant worker access to common law remedies irrespective of the level of permanent impairment resulting from the injury. For these reasons, the Government has decided to make these amendments retrospective to 1 December 1992 excepting only proceedings commenced and determined before the date of the second reading of the Bill.

The amendments made by both of these clauses necessitate amendments to section 63 of the Accident Compensation (WorkCover) Act 1992 and to the Constitution Act 1975. However, as these involve direct amendments to the Constitution Act 1975, a statement for the purposes of section 85(5) of that Act is not required."

For convenience, it is proposed to examine clause 50 here.

10.5 Alteration or variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 50 amends section 63 of the Accident Compensation (WorkCover) Act 1992 and section 85(9) of the Constitution Act 1975.

The Committee wrote to the Minister on 23 May 1996 seeking clarification as to whether the reference made to the Accident Compensation (WorkCover) Act 1992 by clause 50(1) is the correct reference. The Minister responded by way of letter dated 27 May 1996. The relevant extract is set out:-

"I am advised that Parliamentary Counsel has confirmed that the reference to section 63(1)(d) of the Accident Compensation (WorkCover) Act 1992 in clause 50 of the Bill is correct."

Section 85(9) of the Constitution Act 1975 is amended to include the appropriate reference to the Accident Compensation (Amendment) Act 1996 referred to above.

Section 85 requirements

(i) Constitution Act 1975

Section 85(5) of the Constitution Act 1975 is set out:-

"(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless-

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act, or if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and

(c) the statement is so made-

(i) During the member's second reading speech; or

(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or

(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill."

(ii) Section 4D of the Parliamentary Committees Act 1968

Pursuant to section 4D of the Parliamentary Committees Act 1968, the Committee is required to consider any bill introduced into a House of Parliament and to report to the Parliament whether the Bill is in all the circumstances appropriate and desirable. Section 4D(b) is set out:-

"(b) to consider any Bill introduced into a House of Parliament and to report to the Parliament-

(i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;

(ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; or

(iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue."

The Committee also notes the comments in the Second Reading Speech and refers to 10.4 above:-

"The amendments made by both of these clauses (i.e.: clauses 32 and 33) necessitate amendments to section 63 of the Accident Compensation (WorkCover) Act 1992 and to the Constitution Act 1975. However, as these involve direct amendments to the Constitution Act 1975, a statement for the purposes of section 85(5) of that Act is not required."

Two views may be expressed regarding the above. First, one view is that because clause 50 directly amends section 85 there is no need for a Section 85 statement (see Section 85(5)). Alternately, it may be argued that pursuant to section 4D(b)(i) and (ii), notwithstanding the clause directly affects section 85, the Committee is required to report as to whether it is in all the circumstances, appropriate and desirable. Arguably, the Committee is obliged to report to the Parliament, albeit in a brief form. The Committee wrote to the Minister on 23 May 1996 seeking his comments. The Minister responded by way of letter dated 27 May 1996. The relevant extract is set out:-

"I understand the dilemma facing the Committee in relation to this clause.

If it will assist the Committee, I can explain that the limitations on the jurisdiction of the Supreme Court, inherent in a number of amendments made by the Accident Compensation (WorkCover) Act 1992, were effected by way of direct amendment to section 85 of the Constitution Act 1975 to overcome a procedural technicality which arose during the passage of the Bill for the former Act through the Parliament. One of the amendments made to the Principal Act by that Bill was, of course, the insertion into the Act of section 135A.

Having adopted this course, any subsequent amendment of provisions like section 135A which could be said to affect the jurisdiction of the Supreme Court must be dealt with in the same manner.

The substantive amendments contained in this Bill which generate the need for clause 50 are clauses 32 and 33. These clauses make amendments to section 135A which are intended to ensure that, in two respects, that section operates as originally intended.

The amendments made by clause 32 are intended to make it clear that a worker may not normally commence proceedings to which section 135A applies unless a determination of the worker's degree of impairment has been made under sub-section (3) of that section. The amendments also provide a procedural framework within which a worker may apply for such a determination.

The amendments made by clause 33 make it clear that a decision that a worker has a 'serious injury' for the purposes of section 93B of the Principal Act is not to be taken to be a determination for the purposes of section 135A(3) unless it is specifically stated to be so.

Without these amendments, the intended regulation of the role of the recovery of common law damages in the WorkCover scheme would not be able to be fully achieved."

10.6

Clause 34 makes a technical amendment to section 141 which relates to applications for approval as self-insurers. Clause 35 inserts new section 142D which provides for revocation of approvals of self-insurers. Clause 39 extends the power to obtain information and evidence to include those matters relating to contraventions of the Accident Compensation (WorkCover) Insurance Act 1993. Clause 40 inserts new section 239A. In the absence of proof, a signed certificate is evidence of those matters stated on the certificate. Clause 42 inserts new section 240A which extends existing powers of inspection. A magistrate may issue a warrant to enter and search premises if satisfied by evidence on oath, for the purposes of determining whether provisions of various WorkCover Acts have been contravened. Clause 44 amends the secrecy provisions to include the release of information, where relevant, to the Guardianship and Administration Board, the Public Advocate and the Commissioner of State Revenue. Clause 47 inserts new section 250A which sets out offences by bodies corporate. Clause 48 makes consequential amendments. Clause 49 substitutes where relevant, indexed amounts.

10.7 Accident Compensation (WorkCover Insurance) Act 1993

Clause 51 amend section 7 to clarify the operation of the Act. Clauses 52 to 58 make minor amendments.

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