Transport Accident (Amendment) Act 2004
Victorian Legislation and Parliamentary Documents
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Transport Accident (Amendment) Act 2004
Act No. 94/2004
TABLE OF PROVISIONS
Section Page
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Vocational rehabilitation service 3
5. Pre-accident weekly earnings 5
6. Insertion of section 4A 7
4A. Pre-accident weekly earnings—apprentices, trainees etc. 7
7. Additional ground for payments out of the Transport Accident
Fund 9
8. Insertion of sections 45AA and 45AB 9
45AA. Interim payments to self-employed person 9
45AB. Interim payments to be reconciled with actual
entitlements 10
9. Insertion of section 45AC 11
45AC. Seasonal earners may opt to receive loss of earnings
payments on seasonal basis 11
10. Degree of impairment 13
11. Payment of impairment benefits 16
12. Interim payments of lump sum impairment benefits 18
13. Substitution of section 48 19
48. Impairment benefit where more than one accident
involved 19
14. Preservation of certain earnings while participating in supported
employment program 22
15. Changes to childcare and home services benefits 23
16. Widening of categories of family counsellors 25
17. Travel to work benefit 25
18. Modifications to vehicles 26
19. Modifications to homes 27
20. Modification agreements 29
21. Accommodation etc. costs to be paid while person in respite care 29
22. Agreements concerning expensive medical equipment 29
23. Insertion of section 60A 30
60A. Post hospital support payments 30
24. Consequential amendment concerning post hospital support
payments 31
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25. Insertion of section 60B 31
60B. Travel allowance payment agreements 31
26. Insertion of sections 61A—61D 32
61A. Individual funding agreements 32
61B. Contents of individual funding agreements 34
61C. Other provisions concerning individual funding
agreements 35
61D. Agreements where person has a legal disability 36
27. Consequential amendments concerning individual funding
agreements 37
28. Indexation of medical excess amount may be temporarily
suspended 38
29. Tribunal may hear individual funding agreement disputes 39
30. Clarification that period of grace applies to indemnity 39
31. Indemnity by third party 39
32. Insertion of section 121 40
121. Agreements with road accident rescue service providers 40
33. Certified copies of documents to be evidence 40
34. Secrecy provisions—authorised disclosures 41
35. Insertion of section 131A 41
131A. Commission may refer misconduct etc. to appropriate
body and suspend payment 41
36. Insertion of Division 3 into Part 11 43
Division 3—Transport Accident (Amendment) Act 2004 43
183. Definitions 43
184. Changes that apply to all claims 43
185. Sections 4 and 4A (Pre-accident weekly earnings) 44
186. Sections 45AA and 45AB (Interim payments to self-
employed person) 44
187. Section 45AC (Loss of earnings payments to seasonal
earners) 44
188. Section 46A (Degree of impairment) 44
189. Section 47 (Impairment benefits) 45
190. Section 47(3A) (Interim payment of lump sum
impairment benefits) 45
191. Section 48—Savings provisions concerning impairment
benefits paid as an annuity 45
192. Sections 60(2)(c) and 60(2)(d)(Childcare and home etc.
services) 46
37. Minor amendment 46
38. Amendment to the Accident Compensation Act 1985 46
═══════════════
ENDNOTES 47
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Transport Accident (Amendment) Act
2004†
[Assented to 7 December 2004]
The Parliament of Victoria enacts as follows:
1. Purpose
(1) The main purpose of this Act is to amend the
Transport Accident Act 1986—
(a) to enable the Transport Accident
Commission to enter into individual funding
agreements with people who suffer severe
injuries in transport accidents; and
Victoria
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(b) to change the way pre-accident weekly
earnings are calculated for compensation
purposes; and
(c) to increase the benefits paid under that Act;
and
(d) to otherwise improve the operation of that
Act.
(2) This Act also makes a minor amendment to the
Accident Compensation Act 1985.
2. Commencement
(1) This Act, other than sections 5, 6, 8 to 15, 17, 23
and 24, comes into operation on the day after the
day on which it receives the Royal Assent.
(2) Sections 5, 6, 8 to 15, 17, 23 and 24 come into
operation on a day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 July 2005, it
comes into operation on that day.
3. Definitions
(1) In section 3(1) of the Transport Accident
Act 1986—
(a) in the definition of "disability service", after
"other than a rehabilitation service" insert
"or a hospital service";
(b) in the definition of "rehabilitation service",
after "other service" insert "(other than a
disability service or a hospital service)";
(c) in the definition of "medical service", after
paragraph (b) insert—
"(ba) the provision of acupuncture by a
person registered as an acupuncturist
under the Chinese Medicine
Registration Act 2000; and".
s. 2
See:
Act No.
111/1986.
Reprint No. 9
as at
3 December
2003.
LawToday:
www.dms.
dpc.vic.
gov.au
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(2) In section 3(1) of the Transport Accident
Act 1986, insert the following definition—
' "severe injury", except in Part 6, means—
(a) a significant acquired brain injury,
paraplegia, quadriplegia, amputation of
a limb, or burns to more than 50% of
the body; or
(b) any other injury specified by the
regulations for the purposes of this
definition;'.
(3) In section 60(2B) of the Transport Accident
Act 1986—
(a) in the definition of "parent", for "child;"
substitute "child.";
(b) omit the definition of "severe injury".
4. Vocational rehabilitation service
(1) In section 3(1) of the Transport Accident
Act 1986, insert the following definition—
' "vocational rehabilitation service" means any
of the following services provided by a
person who is approved by the Commission
as a provider of a vocational rehabilitation
service—
(a) initial rehabilitation assessment;
(b) functional assessment;
(c) workplace assessment;
(d) job analysis;
(e) advice concerning job modification;
(f) vocational rehabilitation counselling;
(g) vocational assessment;
(h) advice or assistance concerning job-
seeking;
s. 4
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(i) vocational re-education;
(j) advice or assistance in arranging
vocational re-education;
(k) preparation of a return to work plan;
(l) the provision of aids, appliances,
apparatus or other material likely to
facilitate the return to work of a person
after an injury;
(m) modification to a work station or
equipment used by a person that is
likely to facilitate the return to work of
the person after an injury;
(n) any other service authorised by the
Commission—
but does not include a disability service, a
hospital service or a rehabilitation service;'.
(2) In section 3(1) of the Transport Accident
Act 1986, in the definition of "transportation
costs", after paragraph (b) insert—
"or
(c) a vocational rehabilitation service;".
(3) After section 23(1)(b) of the Transport Accident
Act 1986 insert—
"; or
(c) a person as a provider of vocational
rehabilitation services.".
(4) In section 74(2)(b) of the Transport Accident
Act 1986, after "offer of rehabilitation" insert
"or of vocational rehabilitation services".
s. 4
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5. Pre-accident weekly earnings
(1) For sections 4(1) to 4(5) of the Transport
Accident Act 1986 substitute—
'(1) In this Act, "pre-accident weekly
earnings", in relation to an earner (other
than a self-employed person) who is injured
as a result of a transport accident, means the
weekly average of the gross earnings
received by the earner as an earner during
the 12 months immediately before the
relevant day, unless sub-section (2) applies.
(1A) In this section "relevant day" means the
day of the accident or the day when the
injury first manifested itself, whichever is the
later day.
(2) In the following cases, in this Act
"pre-accident weekly earnings", in relation
to an earner (other than a self-employed
person) who is injured as a result of a
transport accident, means—
(a) if, on the relevant day, the earner was
earning continuously, but had not been
earning continuously for at least
12 months, the weekly average of the
gross earnings received by the earner as
an earner during the period from when
the earner started to earn continuously
to immediately before the relevant day;
or
(b) if sub-section (3) applies, the weekly
average of the gross earnings received
by the earner as an earner during the
period from when the change of
circumstance referred to in that sub-
section occurred to immediately before
the relevant day; or
s. 5
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(c) if the earner is an earner by reason of
an arrangement to which section
3(2)(b) applies, the average weekly
gross earnings that the earner could
reasonably have been expected to earn,
but for the injury, in employment under
that arrangement.
Note: This section, as amended by section 5 of the
Transport Accident (Amendment) Act 2004,
only applies to an earner who was injured in a
transport accident that occurs on or after the
date of commencement of section 5—
see section 185. Section 5 inserted sub-
sections (1), (1A), (2), (2A) and (3).
(2A) For the purposes of this section, an earner
earns continuously if he or she obtains
earnings from permanent employment or
from a source that, on the relevant day, was
likely to continue for a period of at least
6 months to provide earnings to the earner on
the same, or a similar, basis to the basis on
which the earnings were being provided as at
the relevant day.
(3) This sub-section applies, if during the
12 months immediately before the relevant
day, there was, as a result of any action taken
by the earner, a significant change in his or
her earnings circumstances that resulted in
the earner regularly earning, or becoming
entitled to earn, more on a weekly basis than
he or she was earning before the change
occurred.
Examples
Examples of a change of circumstances to
which this sub-section would apply include a
change of job, a promotion, a move from part-
time to full-time employment, or a pay increase
arising from the achievement of performance
s. 5
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standards. This sub-section does not apply to a
pay rise applying across an industry.'.
(2) In section 45(6) of the Transport Accident Act
1986, in the definition of "current weekly
earnings" omit the phrase starting "calculated at"
and ending "during the week".
(3) For section 61(5) of the Transport Accident
Act 1986 substitute—
"(5) An increase in the amount of a weekly
payment under section 44 or 45 by reason of
this section takes effect even if it increases
the amount of the weekly payment to more
than 100% of pre-accident weekly earnings,
but does not take effect to the extent (if any)
to which it increases the amount of the
weekly payments to more than 100% of the
current weekly earnings to which the earner
would be entitled if he or she were employed
in the same position or positions (if it or they
can be identified) as he or she was employed
in immediately before the accident, or the
time when the injury first manifested itself.
Note: Sub-section (5), as substituted by section 5 of
the Transport Accident (Amendment) Act
2004, only applies to an earner who was
injured in a transport accident that occurs on or
after the date of commencement of section 5—
see section 185.".
6. Insertion of section 4A
After section 4 of the Transport Accident Act
1986 insert—
"4A. Pre-accident weekly earnings—
apprentices, trainees etc.
(1) This section applies if, at the time an earner
was injured in a transport accident, he or she
was—
s. 6
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(a) under the age of 21 years; or
(b) an apprentice; or
(c) employed under a contract of service
under which he or she was expressly
required to undergo any training,
instruction or examination for the
purpose of becoming qualified for the
occupation to which the contract of
service related—
and, under the terms of his or her
employment, he or she was entitled to
increments in earnings as the employment
continued.
(2) Despite section 4, in respect of any week
after the accident in which the earner is
entitled to a payment under this Act the
calculation of which depends on the amount
of the earner's pre-accident weekly earnings,
the payment is to be calculated on the basis
that the earner's pre-accident weekly
earnings are the weekly earnings that it is
likely that he or she would have been entitled
to in that week had the accident not occurred
and had he or she continued in the
employment.
Note: This section only applies to an earner who was
injured in a transport accident that occurs on or
after the date of commencement of section 6 of
the Transport Accident (Amendment) Act
2004—see section 185.".
s. 6
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7. Additional ground for payments out of the
Transport Accident Fund
After section 27(3)(i) of the Transport Accident
Act 1986 insert—
"(j) any payments required to fulfil any
agreement made by the Commission in
respect of the payment of the legal costs of a
person who has applied for compensation or
damages that is not otherwise authorised
under this sub-section.".
8. Insertion of sections 45AA and 45AB
After section 45 of the Transport Accident
Act 1986 insert—
"45AA. Interim payments to self-employed person
(1) This section only applies to an earner who
was a self-employed person at the time he or
she was injured in a transport accident.
(2) If the person suffers a total loss of earnings
that is a result of, or that is materially
contributed to by, the injury, the
Commission is liable to pay the person 75%
of the amount specified for the purposes of
section 44(3)(a) until the day on which the
first of these events occurs—
(a) the person's period of entitlement (as
defined by section 44(4)) ends; or
(b) the expiry of the first 12 weeks of that
period of entitlement; or
s. 7
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(c) the Commission determines the amount
of the person's pre-accident weekly
earnings.
Note: This section only applies to a person who was
injured in a transport accident that occurs on or
after the date of commencement of section 8 of
the Transport Accident (Amendment) Act
2004—see section 186.
45AB. Interim payments to be reconciled with
actual entitlements
(1) This section applies if the Commission
makes a payment to a person under
section 45AA.
(2) Once the Commission determines the
amount of the person's pre-accident weekly
earnings, the Commission must then
determine the difference between—
(a) the amount that the person has been
paid under section 45AA; and
(b) the amount that the person would have
been paid under section 44 or 45,
during the period in respect of which
payments under section 45AA were
made, had the amount of the person's
pre-accident weekly earnings been
determined on the day of the accident.
(3) If the person was paid less than he or she
was entitled to under section 44 or 45 for the
relevant period, the Commission must pay
the amount of the difference to the person as
soon as is practicable after determining the
amount.
s. 8
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(4) If the person was paid more than he or she
was entitled to under section 44 or 45 for the
relevant period, the Commission may
recover the amount of the difference by way
of offset from any future payments it is
required to make to the person under that
section.".
9. Insertion of section 45AC
Before section 45A of the Transport Accident
Act 1986 insert—
'45AC. Seasonal earners may opt to receive loss of
earnings payments on seasonal basis
(1) This section applies if a seasonal earner is
injured in a transport accident and suffers a
loss of earnings as a result of the injury.
(2) For the purposes of this section—
(a) a "seasonal earner" is a person who
engages in one or more seasonal
activities;
(b) "seasonal activities" are activities that
occur on an annual basis but that only
provide employment for most of the
people engaged in them for less than 6
months in any 12 month period.
Example
Fruit-picking, skiing instruction, acting in a
television series that is only in production for
5 months each year, acting in school holiday
plays, operating a whale-watching boat, making
Christmas puddings.
(3) For the purposes of sections 44 and 45, a
seasonal earner may elect to be compensated
under those sections during the period of
entitlement on a week to week basis as if a
reference in those sections to the earner's
pre-accident weekly earnings was a reference
s. 9
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in a particular week to the earnings the
earner could reasonably have expected to
earn in that week had the injury not occurred.
Note: This sub-section enables a seasonal earner to
elect to receive weekly loss of earnings
payments on the same pattern that he or she
was accustomed to before the injury, that is,
for instance, higher payments in weeks in
which he or she would normally have been
working full time and no, or lower, payments
in weeks when he or she would normally have
been unemployed or working part time. If no
election is made the earner will receive the
same amount each week based on a weekly
average of his or her earnings in the last
12 months (unless another provision of
section 44 or 45 applies).
(4) An election under sub-section (3)—
(a) must be made in writing and be given
to the Commission within 14 days after
the earner becomes entitled to receive
any payment under section 44 or 45;
and
(b) has effect for the remainder of the
period of entitlement that applies in
respect of the injury; and
(c) cannot be revoked once any payment
under section 44 or 45 is made to the
earner in accordance with the election.
(5) Despite sub-section (4)(a), the Commission
may waive the 14 day period referred to in
that sub-section if, in the opinion of the
Commission, it is appropriate to do so in
particular circumstances.
Note: This section only applies to a person who was injured in a
transport accident that occurs on or after the date of
commencement of section 9 of the Transport Accident
(Amendment) Act 2004—see section 187.'.
s. 9
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10. Degree of impairment
(1) For sections 46A(1)(a) and 46A(1)(b) of the
Transport Accident Act 1986 substitute—
"(a) if the person was not a minor when the
accident occurred—
(i) when the injury stabilises; or
(ii) 3 years after the accident, or 3 years
after any injury first manifests itself (as
the case may be)—
whichever occurs first; or
(b) if the person was a minor when the accident
occurred or when the injury first manifested
itself—
(i) when the person attains the age of
18 years, if the injury has stabilised by
that time; or
(ii) in any other case—
(A) when the injury stabilises; or
(B) when the person attains the age of
21 years—
whichever occurs first.".
(2) After section 46A(1) of the Transport Accident
Act 1986 insert—
"(1AA) Despite sub-section (1), the Commission
must not determine the degree of impairment
within 3 months after the accident.
(1AB) If a person applies to the Commission for a
determination of his or her degree of
impairment as a result of a transport accident
more than 2 years after the day of the
accident, or the day when any injury first
manifested itself, whichever is the later day,
the Commission must, if it is of the opinion
s. 10
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that the person is, or is likely to be, entitled
to an impairment benefit, determine the
person's degree of impairment—
(a) if the injury had stabilised by the date
that the application was made, within
12 months after that date; or
(b) in any other case, within—
(i) 12 months after the injury
stabilises; or
(ii) 2 years after the date the
application was made—
whichever occurs first.
(1AC) If the Commission is of the opinion that a
person who applied to the Commission in the
circumstances described in sub-
section (1AB) is, or is likely to be, entitled to
an impairment benefit, but the person's
injury has not stabilised within 12 months
after the application was made, the person
may ask the Commission to wait until the
injury has stabilised before determining his
or her degree of impairment.
(1AD) Despite sub-section (1AB)(b), the
Commission must comply with any request
under sub-section (1AC) that is made in
writing.".
(3) In section 46A(1A) of the Transport Accident
Act 1986 omit "as at 18 months after a transport
accident".
s. 10
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(4) After section 46A(1B) of the Transport Accident
Act 1986 insert—
"(1C) If an injury of a person who was not a minor
when the accident occurred has not stabilised
3 years after the accident, or 3 years after
any injury first manifests itself (as the case
may be), the person may ask the
Commission—
(a) to determine his or her degree of
impairment; or
(b) to wait until the injury has stabilised
before determining his or her degree of
impairment.
(1D) The Commission must comply with any
request under sub-section (1C) that is made
in writing and, in the case of a request made
under sub-section (1C)(a), must do so within
12 months after receiving the request.
(1E) If a person who is eligible to make a request
under sub-section (1C) does not make such a
request within 90 days after the date he or
she becomes eligible to make the request, the
Commission must determine the degree of
impairment of the person within 12 months
after that date.".
(5) After section 46A(7) of the Transport Accident
Act 1986 insert—
"(8) If the Commission is required to assess the
degree of impairment of a person whose
injury has not stabilised, for the purposes of
that assessment—
(a) unless the contrary intention appears in
this section, the degree of impairment
to be assessed is the degree of current
impairment as at the date of the
determination of the assessment; and
s. 10
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(b) any reference to permanent impairment
in the A.M.A. Guides is to be read as a
reference to current impairment.
Note: This section, as amended by section 10 of the Transport
Accident (Amendment) Act 2004 (which amended
sub-sections (1) and (1A) and inserted sub-sections
(1AA)–(1AD), (1C)–(1E) and (8)) applies with respect to
all transport accidents that occurred on or after the day that
is 18 months before the date of commencement of section
10—see section 188.".
(6) After section 71(1) of the Transport Accident
Act 1986 insert—
"(1A) Sub-section (1) also applies to a person if the
Commission is required to make a
determination of the person's degree of
impairment as a result of a transport
accident.
Note: Sub-section (1A) applies with respect to all
transport accidents that occurred on or after the
day that is 18 months before the date of
commencement of section 10 of the Transport
Accident (Amendment) Act 2004—
see section 188.".
11. Payment of impairment benefits
(1) In section 47 of the Transport Accident
Act 1986 insert the following heading—
"Impairment benefit".
(2) At the foot of section 47(1) of the Transport
Accident Act 1986 insert—
"Note: This section, as amended by section 11 of the
Transport Accident (Amendment) Act 2004
(which substituted sub-section (2) and amended sub-
section (6)), only applies to a person who was injured
in a transport accident that occurs on or after the date
of commencement of section 11—see section 189.".
s. 11
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(3) For section 47(2) of the Transport Accident Act
1986 substitute—
'(2) The impairment benefit is the amount shown,
or the amount calculated in accordance with
the formula, in column 2 of the following
table that is opposite the person's degree of
impairment—
Degree of
impairment Impairment benefit
10% or less 0
11% – 19% $4 500 + ((D – 10) × $1000)
20% – 49% $15 000 + ((D – 20) × $1500)
50% – 59% $60 250 + ((D – 50) × $1750)
60% – 79% $78 000 + ((D – 60) × $2000)
80% – 89% $120 000 + ((D – 80) × $4000)
90% – 99% $164 000 + ((D – 90) × $8000)
100% $252 000
where "D" is the person's degree of
impairment expressed as a number.
(2A) If a degree of impairment of 11% or more is
the result of more than one transport
accident, section 48 applies.'.
(4) Sections 47(6)(a) and 55(1) of the Transport
Accident Act 1986 are repealed.
(5) In the Transport Accident Act 1986—
(a) in sections 40(2) and 40(3) omit "48,";
(b) in section 53(3), omit "48," (wherever
occurring);
s. 11
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(c) in section 56(1)—
(i) for "sum of the impairment annuity
under section 48 and" substitute
"amount of";
(ii) for "that annuity and" substitute
"those";
(d) in section 56(2) omit "an annuity under
section 48 or";
(e) in section 61(2) omit "or 48(1)";
(f) in section 93(11)(b)(i) omit ", 48".
12. Interim payments of lump sum impairment benefits
(1) For section 47(3A) of the Transport Accident
Act 1986 substitute—
"(3A) The Commission may pay an interim benefit
under this section at any time to a person
who is injured as a result of a transport
accident if it is satisfied—
(a) that, given the nature of the person's
injuries, the person's permanent
impairment is likely to be at least 30%;
or
(b) that the person's injuries are
substantially stable.
Note: Sub-section (3A) applies with respect to all
transport accidents that occurred on or after the
day that is 18 months before the date of
commencement of section 12 of the Transport
Accident (Amendment) Act 2004—
see section 190.".
s. 12
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(2) After section 77(1) of the Transport Accident
Act 1986 insert—
"(2) Sub-section (1) does not apply with respect
to a decision of the Commission concerning
the payment or non-payment of an interim
benefit under section 47(3A).".
13. Substitution of section 48
For section 48 of the Transport Accident
Act 1986 substitute—
'48. Impairment benefit where more than one
accident involved
(1) In this section, the "relevant date" is the
date of commencement of section 13 of the
Transport Accident (Amendment)
Act 2004.
(2) This section applies if—
(a) a person is injured as a result of one or
more transport accidents; and
(b) the person has a total degree of
impairment of 11% or more as a result
of that accident, or those accidents; and
(c) the person is injured in a subsequent
transport accident, and the person's total
degree of impairment is increased by
1% or more as a result of that
subsequent accident.
(3) This section also applies if—
(a) a person is injured as a result of one or
more transport accidents; and
(b) the person has a total degree of
impairment of 1% or more, but less
than 11%, as a result of that accident, or
those accidents; and
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(c) the person is injured in a subsequent
transport accident, and the person's total
degree of impairment as a result of the
transport accidents is increased to 11%
or more; and
(d) the person has not previously become
entitled to a benefit under this section.
(4) The person is entitled to an impairment
benefit under section 47(2), as at the date of
determination of the last relevant degree of
impairment, as if the total degree of
impairment attributable to the initial
accident, or accidents, and the subsequent
accident resulted from a single accident.
(5) If the person has already been paid an
impairment benefit under sub-section (4) in
respect of an earlier accident, or earlier
accidents, the person is entitled to be paid the
difference between the amount the person is
entitled to in accordance with sub-section (4)
for his or her current total degree of
impairment and the amount that he or she
has already been paid as an impairment
benefit.
(6) Sub-section (4) does not apply in respect of
any accident that occurred before the
relevant date (except accidents that did not
result in a person having a total degree of
impairment of 11% or more).
(7) Sub-section (8) applies if—
(a) a person has a total degree of
impairment of 11% or more as a result
of one or more transport accidents that
occurred before the relevant date; and
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(b) the person is injured in a transport
accident that occurs on or after the
relevant date, and the person's total
degree of impairment as a result of that
subsequent accident is increased by 1%
or more.
(8) If this sub-section applies, the person is
entitled to an amount that is the result of the
following calculation—
T – N
where—
"T" is the amount that would be payable as
an impairment benefit under
section 47(2), as at the date of
determination of the last relevant
degree of impairment, as if the person's
total degree of impairment attributable
to transport accidents resulted from a
single accident;
"N" is the notional amount that the person
would have been entitled to as an
impairment benefit under section 47(2)
on the relevant date in respect of the
total degree of impairment resulting
from transport accidents in respect of
which he or she received, or was
entitled to receive, an impairment
benefit under this Act before that date.
(9) If the person has already been paid an
impairment benefit under sub-section (8) in
respect of an earlier accident, or earlier
accidents, the person is entitled to be paid the
difference between the amount the person is
entitled to in accordance with sub-section (8)
for his or her current total degree of
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impairment and the amount that he or she
has already been paid under that sub-section.
(10) A reference in this section to "under this
section" is a reference to this section as
inserted by section 13 of the Transport
Accident (Amendment) Act 2004.
(11) This section is to be read as if it were part of
section 47, unless the contrary intention
appears.'.
14. Preservation of certain earnings while participating
in supported employment program
(1) In section 3(1) of the Transport Accident
Act 1986 insert the following definition—
' "supported employment program" means a
program designed to promote and enhance
the independence of a person with a severe
injury by assisting the person's return to paid
employment where the person needs ongoing
support to obtain, or to perform and retain,
that employment;'.
(2) After section 49(8) of the Transport Accident
Act 1986 insert—
"(9) An earner's entitlements under this section
are not affected by the earner starting or
continuing paid employment if—
(a) he or she has a severe injury as a result
of a transport accident; and
(b) he or she is participating in a supported
employment program in respect of that
employment; and
(c) he or she receives $120 per week or
less as earnings from that
employment.".
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(3) After section 50(6) of the Transport Accident
Act 1986 insert—
"(7) Despite sub-section (5), in the case of an
earner who is participating in a supported
employment program in respect of any
employment and who receives more than
$120 per week as earnings from that
employment, this section applies as if the
earner's post-accident earning capacity was
the amount of the earner's earnings less
$120.".
(4) In section 61(2) of the Transport Accident
Act 1986, after "$5000," insert "$120,".
15. Changes to childcare and home services benefits
(1) For sections 60(2)(c) and 60(2)(d) of the
Transport Accident Act 1986 substitute—
'(c) if the person, in the 30 days before the
transport accident, was engaged in the care
of a child and did not receive salary or wages
in respect of that care, the reasonable costs
incurred after the transport accident in
employing, during the first 5 years after the
death or injury, an authorised person to
undertake in Australia care of the child, but
payment is not to be made in respect of more
than—
(i) if, at the time of the accident, the
person was in full-time paid
employment for 35 hours or more per
week, a total of 10 hours per week of
child care services;
(ii) if, at the time of the accident, the
person was in paid employment for less
than 35 hours per week, a total of x
hours per week of child care services
where "x" is—
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(A) if the result of the following
calculation is less than 40—
10 + (35 – the number of hours
per week of paid employment)—
that number; or
(B) in any other case, 40;
(iii) in any other case a total of 40 hours per
week of child care services; and
(d) the reasonable costs incurred after the
transport accident in employing an
authorised person to provide in Australia
home services and post acute support during
the first 5 years after the death or injury, but
payment is not to be made in respect of more
than a total of 40 hours per week of such
services or support.
Note: Paragraphs (c) and (d) only apply to a person who
was injured in a transport accident that occurred on
or after the date of commencement of section 15 of
the Transport Accident (Amendment) Act 2004—
see section 192.'.
(2) After section 60(2) of the Transport Accident
Act 1986 insert—
"(2AA) If a person is entitled to payments under both
sub-sections (2)(c) and (2)(d), the payments
are not to be made for more than a combined
total of 40 hours per week of the services or
support referred to in those sub-sections.
(2AB) For the purposes of sub-section (2)(c), a
woman who was pregnant at the time she
was injured as a result of a transport accident
is deemed to have been engaged in the care
of a child in the 30 days before the transport
accident.
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(2AC) With respect to sub-section (2)(d)—
(a) the 5 year limit does not apply to a
person who has a severe injury; and
(b) in determining the reasonable cost of
home services, the Commission may
have regard to the capacity of other
members of the person's household to
carry out such services.".
(3) In section 3(1) of the Transport Accident Act
1986 insert the following definition—
' "post acute support" means the provision of
assistance to, or for, a person who requires
support in personal care, mobility, transfers,
banking or shopping after being discharged
from a hospital;'.
16. Widening of categories of family counsellors
(1) In section 60(2A) of the Transport Accident Act
1986, for "or registered psychologist" substitute
", a registered psychologist or a person who is
authorised under section 23 to provide a service
for the purposes of this sub-section".
(2) In section 23(1)(b) of the Transport Accident
Act 1986, for "or 60(2)(d)" substitute ", 60(2)(d)
or 60(2A)".
17. Travel to work benefit
(1) After section 60(2B) of the Transport Accident
Act 1986 insert—
"(2BA) The Commission is liable to pay as
compensation to an earner who is injured as
a result of a transport accident the reasonable
costs of travelling to and from work for up to
12 weeks after first returning to work after
the accident if the earner is unable, because
of the injuries received as a result of the
accident, to undertake that travel in the way
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that he or she usually did before the accident,
but the total payment made under this sub-
section to the earner as a result of the
accident is not to exceed $1000.".
(2) In section 61(2) of the Transport Accident Act
1986, for "or $1660" substitute ", $1660 or
$1000".
18. Modifications to vehicles
For section 60(3) of the Transport Accident Act
1986 substitute—
"(3) If a person, as a result of his or her transport
accident injury, reasonably requires a motor
vehicle used by him or her in Australia to be
modified, the Commission is liable—
(a) to pay the reasonable costs of
modifying the vehicle; or
(b) if the vehicle is not capable of being
modified, to contribute a reasonable
amount to the purchase cost of a
suitably modified motor vehicle
selected by the Commission.
(3A) If a person, as a result of his or her transport
accident injury, reasonably requires access to
a motor vehicle, and he or she does not have
access to a motor vehicle, the Commission is
liable to contribute a reasonable amount to
the purchase cost of a suitable motor vehicle
selected by the Commission.
(3B) Without limiting the factors the Commission
may consider in determining what is a
reasonable amount for the purposes of sub-
sections (3)(b) and (3A), the Commission
must have regard to any of the following
factors that are applicable—
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(a) the market value now of the motor
vehicle used by the person at the time
of the accident;
(b) if that vehicle is no longer used by the
person, the market value of the vehicle
at the time of the accident;
(c) whether the person or, in the case of a
minor, his or her parent or guardian,
owned, leased or rented the vehicle;
(d) how often the person was using motor
vehicles at the time of the accident;
(e) how often the person will, or is likely
to, use a motor vehicle in future;
(f) the market value of any other motor
vehicle that the person uses.".
19. Modifications to homes
For section 60(4) of the Transport Accident Act
1986 substitute—
"(4) If a person, as a result of his or her transport
accident injury, reasonably requires that a
home in which he or she resides in Australia
be modified, the Commission is liable—
(a) to pay the reasonable costs of
modifying the home; or
(b) if for any reason the home cannot be
reasonably modified, to contribute a
reasonable amount—
(i) to the purchase costs of a semi
detachable portable unit; or
(ii) to the costs of relocating the
person to another home that is
suitable for the person or that is
capable of being reasonably
modified.
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(4A) Without limiting the factors the Commission
may consider in determining the reasonable
costs or amount for the purposes of sub-
section (4), the Commission must have
regard to the following factors—
(a) whether the home in which the person
resides is structurally suitable for
modification;
(b) the nature of the person's injuries as a
result of the accident;
(c) how those injuries restrict, or are likely
to restrict, the person's ability—
(i) to enter and leave the home in
which the person resides; and
(ii) to move about the home for
necessary purposes;
(d) the extent of the modifications that will
be needed to address those restrictions
or likely restrictions;
(e) any complex, unique or unusual
circumstances associated with those
modifications;
(f) whether the cost of those modifications
is likely to exceed the value of the
home in which the person resides.
(4B) If a person moves from a home that has
modifications to which the Commission
made a contribution, in assessing whether to
make a payment in respect of modifications
to the person's new home, the Commission
must have regard to the appropriateness of
that home for modification, having regard to
all relevant circumstances, with respect to
the modifications that are needed.".
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20. Modification agreements
In section 60(6) of the Transport Accident Act
1986, for "An agreement under sub-section (5)"
substitute "Without limiting what may be
included in an agreement under sub-section (5),
the agreement".
21. Accommodation etc. costs to be paid while person in
respite care
After section 60(10) of the Transport Accident
Act 1986 insert—
"(11) Sub-section (7) also does not apply to a
person while the person is receiving respite
care as a result of the injury.".
22. Agreements concerning expensive medical
equipment
At the end of section 60 of the Transport
Accident Act 1986 insert—
'(12) The Commission must not make a payment
under sub-section (2) of more than $5000 for
any equipment or item of the sort described
in paragraph (g), (h) or (i) of the definition of
"medical service" in section 3(1) unless the
injured person enters into an agreement with
the Commission in relation to the equipment
or item.
(13) Without limiting what may be included in an
agreement under sub-section (12), the
agreement must include provisions in respect
of—
(a) the ownership, operation and
maintenance of the equipment or item;
and
(b) changes of ownership of the equipment
or item.'.
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23. Insertion of section 60A
After section 60 of the Transport Accident Act
1986 insert—
"60A. Post hospital support payments
(1) This section applies if—
(a) for an injury resulting from a transport
accident, a person receives hospital
services as an inpatient or for day
surgery; and
(b) the hospital services were received at
least 3 years after the transport accident
occurred; and
(c) while in hospital, or while recovering
from the treatment he or she received in
the hospital, the person—
(i) suffers a loss of wages; or
(ii) needs assistance with child care,
home services or post-acute
support.
(2) The Commission is liable to pay as
compensation to the person—
(a) a contribution for the loss of wages;
(b) a reasonable contribution for the child
care, home services or post-acute
support required by the person in
Australia, but only if those services
are provided by a person authorised for
the purposes of this section under
section 23.
(3) With respect to sub-section (2)(a), the
Commission must not make a contribution in
respect of a day that exceeds one fifth of the
current amount specified in section 44(3)(a).
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(4) The Commission is only liable to pay a total
of $3500 to a person under this section in
respect of the injuries sustained in one
transport accident.
(5) With respect to the injuries sustained in one
transport accident, the limit in sub-
section (4) applies as at the date a hospital
service referred to in sub-section (1) is first
received in respect of the injuries.".
24. Consequential amendment concerning post hospital
support payments
Before section 23(1)(b) of the Transport
Accident Act 1986 insert—
"(ab) a person to provide services for the purposes
of section 60A; or".
25. Insertion of section 60B
Before section 61 of the Transport Accident
Act 1986 insert—
"60B. Travel allowance payment agreements
(1) This section applies if—
(a) a person receives a severe injury as a
result of a transport accident; and
(b) the person is entitled to receive
compensation for transportation costs
or for the costs of ambulance services
for the purposes of travelling to or from
a medical service; and
(c) the person is not a party to an
individual funding agreement that
covers some or all of those costs.
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(2) The Commission may enter into an
agreement with the person under which
provision is made for the payment of the
compensation to the person by way of
allowance.
(3) Without limiting what may be included in an
agreement, an agreement may provide for
payments—
(a) to be made for periods of time, or
classes of cases, rather than on the basis
of individual trips; or
(b) to be made in advance, despite anything
to the contrary in section 27.
(4) While a person is a party to an agreement
under this section, he or she is not entitled to
any additional compensation under
section 60 in respect of the matters covered
by the agreement.".
26. Insertion of sections 61A—61D
After section 61 of the Transport Accident
Act 1986 insert—
'61A. Individual funding agreements
(1) This section applies if—
(a) a person has a severe injury as a result
of a transport accident; and
(b) the person is entitled to receive
compensation under this Act for
approved services.
(2) The Commission may enter into an
agreement with the person under which
provision is made for the payment of the
compensation to the person by way of
periodic payments that represent a
reasonable estimate of the person's likely
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costs or expenditure in the relevant period in
relation to the approved services covered by
the agreement.
(3) The purpose of the agreement is to promote
the person's autonomy in acquiring approved
services.
(4) For the purposes of this section, "approved
services" are any of the following services
for which the Commission is liable to pay
compensation under section 60, and any
equivalent services for which the
Commission is liable to pay compensation
under section 145—
(a) medical services other than—
(i) attendance, examination or
treatment of any kind by a medical
practitioner or a registered dentist;
and
(ii) any medical service described in
paragraphs (c) to (h) of the
definition of "medical service" in
section 3(1);
(b) nursing services, disability services
authorised under section 23, child care
services, home services and post acute
support services;
(c) transportation costs;
(d) ambulance services for the purposes of
travelling to or from a medical service
to which paragraph (a) applies;
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(e) rehabilitation services authorised under
section 23, other than the provision of
any aid, appliance or apparatus for the
purpose of rehabilitation that is more
than $200 or any other amount
specified by the regulations for the
purposes of this paragraph.
61B. Contents of individual funding
agreements
(1) Without limiting what may be included in an
individual funding agreement, the agreement
must—
(a) provide for how long it remains in
force;
(b) specify what approved services it
covers;
(c) specify how and when payments under
the agreement are to be made;
(d) require the reporting of specified
information to enable the monitoring of
the agreement;
(e) set out any other obligations of the
parties under the agreement;
(f) provide for how the agreement may be
amended;
(g) provide for how the agreement may be
renewed;
(h) provide for how the agreement may be
suspended or terminated, and in the
case of termination, set out any
obligations that are to apply to the
parties as a result of the termination;
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(i) specify that it is governed by the law of
Victoria;
(j) provide for the recovery of—
(i) overpayments made under the
agreement; and
(ii) payments made under the
agreement that were not applied in
accordance with the agreement;
(k) set out a dispute resolution mechanism;
(l) provide for any other matter that is
required for the purposes of this sub-
section by the Governor in Council by
order published in the Government
Gazette.
(2) Without limiting what may be included in an
individual funding agreement, an agreement
may provide for payments to be made in
advance, despite anything to the contrary in
section 27.
61C. Other provisions concerning individual
funding agreements
(1) While a person is a party to an individual
funding agreement, he or she is not entitled
to any compensation under section 60 or 145
(as the case may be) in respect of the
approved services covered by the agreement
other than the compensation provided under
the agreement.
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(2) Sub-section (1) applies even if amendments
to section 60 or 145 in respect of the
approved services take effect while the
agreement is in force and the effect of those
amendments is to increase the compensation
payable with respect to those services.
(3) An individual funding agreement does not
have to cover all the approved services to
which the person is entitled to compensation
under this Act.
(4) The Commission must not make a payment
under an individual funding agreement in
respect of an approved service covered by
the agreement—
(a) that is more, in the opinion of the
Commission, than the reasonable cost
of that service; or
(b) that is in respect of a period of more
than 60 days.
(5) The termination of an individual funding
agreement does not affect any entitlement of
the person who was a party to the agreement
to compensation under this Act for an
approved service in respect of any period
that is after the date the agreement ended.
61D. Agreements where person has a legal
disability
(1) This section applies if—
(a) the Commission is authorised to enter
into an agreement with a person under
this Act; and
(b) the injured person is under a legal
disability that prevents the person from
entering into agreements on his or her
own behalf; and
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(c) the agreement is signed by a person
who is authorised by law to enter into
the agreement on behalf of the injured
person.
Examples
Examples of authorised people may include a
person who has been appointed to be the
injured person's guardian; a person who has
been appointed as the attorney of the injured
person under a general or enduring power of
attorney; in the case of a minor, the injured
person's parent.
(2) A reference in this Act to the injured person
includes a reference to the person who
signed the agreement if the context requires
or permits.
(3) The Commission may include in the
agreement provisions dealing with what is to
happen if the person who signed the
agreement ceases to be the injured person's
representative.
(4) The Commission may enter into a separate
agreement with the injured person's
representative imposing obligations on the
representative in relation to the agreement
with the injured person.'.
27. Consequential amendments concerning individual
funding agreements
(1) In section 3(1) of the Transport Accident
Act 1986 insert the following definition—
' "individual funding agreement" means an
agreement made under section 61A;'.
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(2) After section 3(8) of the Transport Accident
Act 1986 insert—
"(9) A reference to the payment of compensation
to a person by the Commission in this Act
includes a reference to any amount paid in
advance in respect of compensation by the
Commission to the person under an
agreement authorised by this Act.".
(3) After section 23(1)(a) of the Transport Accident
Act 1986 insert—
"(aa) services to be approved services for the
purposes of individual funding agreements;
or".
(4) After section 132(1)(c) of the Transport
Accident Act 1986 insert—
"(d) individual funding agreements, including the
form of those agreements and additional
matters and details that are to be included in
those agreements;".
28. Indexation of medical excess amount may be
temporarily suspended
After section 61(6) of the Transport Accident
Act 1986 insert—
"(7) The Governor in Council may, on the
recommendation of the Commission, by
order published in the Government Gazette,
declare that this section does not apply to
any amount referred to in section 43(1)(b) in
respect of a specified financial year.".
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29. Tribunal may hear individual funding agreement
disputes
Before section 77(4) of the Transport Accident
Act 1986 insert—
"(3) If any dispute arises in relation to an
individual funding agreement or a proposed
individual funding agreement, a party (or a
proposed party) to the agreement may apply
to the Tribunal for a resolution of the dispute
within 3 months after the dispute arises.".
30. Clarification that period of grace applies to
indemnity
After section 94(2A) of the Transport Accident
Act 1986 insert—
"(2B) With respect to sub-section (2)(aa), sub-
section (1) does apply in respect of any
period when the charge was unpaid if the
charge was subsequently paid within 28 days
after it was due to be paid.".
31. Indemnity by third party
In section 104 of the Transport Accident
Act 1986—
(a) in sub-section (1), after "created a legal
liability" insert "in Victoria or elsewhere";
(b) in sub-section (3), after "in sub-section (1)"
insert ", whether by consent or otherwise
and irrespective of whether the Commission
has taken over proceedings in accordance
with section 107,".
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32. Insertion of section 121
After the heading to Part 9 of the Transport
Accident Act 1986 insert—
"121. Agreements with road accident rescue
service providers
The Commission may enter into an
agreement with a person or body who
provides one or more road accident rescue
services under which provision is made for
the Commission to meet its obligations in
respect of such services under section 60 by
making payments in respect of classes or
groups of cases or claims, rather than on an
individual basis.".
33. Certified copies of documents to be evidence
For section 124(2) of the Transport Accident
Act 1986 substitute—
"(2) A document that has written on it, or that is
accompanied by, a statement signed by the
Chief Executive Officer certifying that the
document is a copy of all, or a specified part,
of a specified original document is to be
admitted in any proceeding as if it were the
original document, or the part of the original
document, as the case may be.
(3) Sub-section (2) only applies if the document
looks as if it has been produced by a
mechanical or electronic process.
(4) Sub-section (2) does not apply if it is
established that the document is not a true
copy of the original document.".
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34. Secrecy provisions—authorised disclosures
After section 131(2)(ca) of the Transport
Accident Act 1986 insert—
"(cb) producing a document or divulging or
communicating information to a regulatory
body as authorised by section 131A; or".
35. Insertion of section 131A
After section 131 of the Transport Accident
Act 1986 insert—
"131A. Commission may refer misconduct etc. to
appropriate body and suspend payment
(1) This section applies if—
(a) a service is provided to a person who
was injured in a transport accident and
the provision of the service is wholly or
partially funded by the Commission
(whether directly or indirectly); and
(b) the Commission is concerned about—
(i) the adequacy, appropriateness or
frequency of the service as
provided by the service provider;
or
(ii) the competence with which the
service was provided by the
service provider; and
(c) the conduct of the trade or profession of
the service provider is regulated by a
regulatory body that has a statutory
power to investigate the conduct that
the Commission is concerned about.
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(2) The Commission—
(a) may refer the conduct of the service
provider to that regulatory body; and
(b) may provide to that body any
information it has concerning the
provision of the service or the service
provider that is necessary to enable the
Commission's concerns to be
effectively investigated—
if the person to whom the service was
provided has consented in writing to the
referral and to the disclosure of the
information, or if, in the opinion of the
Commission, that consent will not be
reasonably provided.
(3) The Commission may also, by written notice
to the service provider, suspend the payment
of costs by it for any services provided by
the provider (whether before or after the
referral).
(4) If the regulatory body advises the
Commission in writing within 6 months after
the referral that it intends to take any form of
disciplinary or legal action against the
service provider as a result of the referral, the
suspension continues until that body advises
the Commission in writing that it intends to
take no further action against the service
provider as a result of the referral.
(5) In any other case, the suspension continues
until—
(a) the regulatory body advises the
Commission in writing that it intends to
take no further action in respect of the
referral; or
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(b) the expiry of 6 months—
whichever occurs first.
(6) If a debt was suspended under this section
and the suspension ends and the debt still
exists, the debt is to be treated as if it first
fell due 7 days after the day the suspension
ends.".
36. Insertion of Division 3 into Part 11
In Part 11 of the Transport Accident Act 1986,
after Division 2 insert—
'Division 3—Transport Accident (Amendment)
Act 2004
183. Definitions
In this Division—
"amending Act" means the Transport
Accident (Amendment) Act 2004;
"commencement date" means the day after
the day on which the amending Act
receives the Royal Assent.
184. Changes that apply to all claims
This Act, as amended by sections 2–4, 7, 14,
15(1), 15(2) and 16–37 of the amending Act,
applies with respect to all transport
accidents, regardless of when they occurred,
and to all applications in respect of such
accidents, regardless of when the
applications were made.
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185. Sections 4 and 4A (Pre-accident weekly
earnings)
(1) Section 4, as amended by section 5 of the
amending Act, and section 4A, as inserted by
section 6 of the amending Act, only apply to
earners who are injured in a transport
accident that occurred on or after the date of
commencement of section 5 or 6 (as the case
may be).
(2) Section 61(5), as substituted by section 5 of
the amending Act, only applies to an earner
who was injured in a transport accident that
occurs on or after the date of commencement
of section 5.
186. Sections 45AA and 45AB (Interim
payments to self-employed person)
Sections 45AA and 45AB, as inserted by
section 8 of the amending Act, only apply to
a person who is injured in a transport
accident that occurred on or after the date of
commencement of section 8.
187. Section 45AC (Loss of earnings payments
to seasonal earners)
Section 45AC, as inserted by section 9 of the
amending Act, only applies to a person who
is injured in a transport accident that
occurred on or after the date of
commencement of section 9.
188. Section 46A (Degree of impairment)
Section 46A, as amended by section 10 of
the amending Act, and section 71(1A), as
inserted by section 10 of the amending Act,
applies with respect to all transport accidents
that occurred on or after the day that is
18 months before the date of commencement
of section 10.
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189. Section 47 (Impairment benefits)
Section 47, as amended by section 11 of the
amending Act, only applies to a person who
was injured in a transport accident that
occurs on or after the date of commencement
of section 11.
190. Section 47(3A) (Interim payment of lump
sum impairment benefits)
Section 47(3A), as inserted by section 12 of
the amending Act, applies with respect to all
transport accidents that occurred on or after
the day that is 18 months before the date of
commencement of section 12.
191. Section 48—Savings provisions
concerning impairment benefits paid as
an annuity
(1) This section applies to a person who,
immediately before the commencement of
section 13 of the amending Act—
(a) was receiving periodic payments in
accordance with section 48; or
(b) had an accrued entitlement to such
payments, regardless of whether or not
the person's impairment benefit had
been assessed.
(2) The person is entitled to continue to receive
periodic payments in accordance with
section 48 as if sections 11 and 13 of the
amending Act had not been enacted.
(3) For the purposes of this section, the
Governor in Council may make regulations
for or with respect to payments under
section 48 as if that section had not been
repealed.
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192. Sections 60(2)(c) and 60(2)(d)(Childcare
and home etc. services)
Sections 60(2)(c) and 60(2)(d), as amended
by section 15 of the amending Act, only
apply to a person who is injured in a
transport accident that occurred on or after
the date of commencement of section 15.'.
37. Minor amendment
In section 3(2) of the Transport Accident
Act 1986, for "section 77 of that Act" substitute
"section 13 of the Child Employment Act 2003".
38. Amendment to the Accident Compensation Act 1985
After section 99(16) of the Accident
Compensation Act 1985 insert—
"(16A) Sub-section (15) also does not apply to a
person while the person is receiving respite
care as a result of the injury.".
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 14 October 2004
Legislative Council: 18 November 2004
The long title for the Bill for this Act was "to amend the Transport
Accident Act 1986 and the Accident Compensation Act 1985 and for
other purposes."
Endnotes
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