Transport Accident (Amendment) Act 2000

i Transport Accident (Amendment) Act 2000 Act No. 84/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—AMENDMENT OF TRANSPORT ACCIDENT ACT 1986 3 3. Definitions 3 4. Transport accident to include certain incidents with pedal cyclists 5 5. Pre-accident weekly earnings 6 6. TAC no longer a reorganising body 7 10A. TAC no longer a reorganising body 7 7. Proceedings and resolutions of the Board 7 8. Authorisation of disability services 8 9. Extension of time for review 8 10. Transport Accident Fund 8 11. Capital and dividends 8 29A. Repayment of capital 8 29B. Dividends 8 12. Sections 39 and 40 substituted 9 39. Circumstances in which a person is not entitled to compensation 9 40. Circumstances in which certain compensation is not payable or is reduced 10 40A. General provisions 15 13. Degree of impairment 16 14. Impairment benefit 17 15. Calculation of loss of earning capacity 19 16. Review of entitlement 20 17. Surviving spouse 21 18. Surviving children 21 19. Medical and like benefits 22 20. Home and motor vehicle modifications 25 21. Notice of accident 26 22. Sections 65 and 66 substituted 27 -- 1 of 44 -- Section Page ii 65. Provisions applying to notice under section 64 27 66. Payment of penalty 28 23. Form of claim 28 24. Time for making claim under Part 3 29 25. Time period for considering claims 29 26. Medical examinations 29 27. Reviews 30 28. Evidence as to alcohol or drugs 31 29. Release from liability for payments under section 60 33 30. Procedures under section 93 33 93D. Directions 33 31. Indemnity 34 32. Unindemnified vehicles 34 33. Indemnity by third party 35 34. Rates of charges 35 35. Amendments consequential to section 34 36 36. Provision of information 36 PART 3—AMENDMENT OF ACCIDENT COMPENSATION ACT 1985 38 37. Amendment of section 135A 38 38. Liability of Transport Accident Commission 38 39. Amendment of proposed section 134AG and commencement 38 40. Supreme Court-limitation of jurisdiction 39 252E. Supreme Court-limitation of jurisdiction 39 PART 4—AMENDMENT OF DANGEROUS GOODS ACT 1985 40 41. Amendment of Dangerous Goods Act 1985 40 ═══════════════ ENDNOTES 42 -- 2 of 44 -- 1 Transport Accident (Amendment) Act 2000† [Assented to 28 November 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to— (a) amend the Transport Accident Act 1986 to— (i) compensate claimants receiving weekly payments for the effect of the GST; Victoria No. 84 of 2000 -- 3 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 2 (ii) include as a transport accident a collision between a pedal cyclist travelling to or from work and a motor vehicle; (iii) provide improved access to certain benefits; (iv) revise procedures relating to claims and reviews; (v) improve the operation of the Act; and (b) make miscellaneous amendments to the Accident Compensation Act 1985 and the Dangerous Goods Act 1985. 2. Commencement (1) This section and sections 1, 6, 9, 10, 11, 13, 14(3), 15(4), 17, 18, 21, 22, 24, 25, 26, 27(4), 29, 31, 32, 33, 36, 37, 39 and 40 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Section 15(3) is deemed to have come into operation on 1 July 2000. (3) Subject to sub-section (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in sub-section (3) does not come into operation before 1 July 2002, it comes into operation on that day. _______________ s. 2 -- 4 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 3 PART 2—AMENDMENT OF TRANSPORT ACCIDENT ACT 1986 3. Definitions (1) In section 3(1) of the Transport Accident Act 1986 for the definition of "dependent spouse" substitute— ' "dependent spouse" in relation to a person means the spouse of that person, if the spouse would but for the injury or death of that person— (a) be wholly, mainly or in part dependent on that person for economic support; or (b) be wholly dependent on the person for the care of the children of the spouse or of that person;'. (2) After section 3(1A) of the Transport Accident Act 1986 insert— '(1B) The definition of "dependent spouse" as substituted by section 3(1) of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.'. (3) In section 3(1) of the Transport Accident Act 1986— (a) after the definition of "dependent spouse" insert— ' "disability service" means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service) relating to attendant care, assistance, s. 3 -- 5 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 4 accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23;'; (b) in the definition of "injury" after "nervous shock" insert "suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident"; (c) in the definition of "medical service", for paragraph (e) substitute— "(e) the provision by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist of any certificate required by the person, the person's dependants or the Commission for any purpose relating to the operation of this Act or any report authorised by the Commission;"; (d) for the definition of "rehabilitation service" substitute— ' "rehabilitation service" means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service, the provision of which is an authorised service in accordance with section 23;'; (e) after the definition of "transport accident" insert— s. 3 -- 6 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 5 ' "transportation costs" means costs incurred travelling to or from— (a) a rehabilitation service; or (b) an approved program of disability services the provision of which is authorised in accordance with section 23;'; (f) in the definition of "registered motor vehicle", in paragraph (b) after "registered" insert "and is not registered under the law of another State or Territory". (4) After section 3(2) of the Transport Accident Act 1986 insert— '(2A) The definition of "injury" as amended by section 3(3)(b) of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.'. (5) In section 57 of the Transport Accident Act 1986— (a) for "an earner" (wherever occurring) substitute "a person"; (b) for "the earner" (wherever occurring) substitute "the person". 4. Transport accident to include certain incidents with pedal cyclists (1) After section 3(1A)(b) of the Transport Accident Act 1986 insert— "(c) involving a collision between a pedal cycle and a motor vehicle while the cyclist is s. 4 -- 7 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 6 travelling to or from his or her place of employment.". (2) After section 3(7) of the Transport Accident Act 1986 insert— '(8) The definition of "transport accident" as amended by section 4(1) of the Transport Accident (Amendment) Act 2000 applies to and in respect of any claim arising out of the transport accident which occurred on 7 February 1997 involving the pedal cycle of Mr Dale Sheppard as if the definition as amended by that section was in force when that transport accident occurred and this Act has effect accordingly.'. 5. Pre-accident weekly earnings After section 4(1B) of the Transport Accident Act 1986 insert— "(1BA) For the purposes of sub-section (1), in calculating the earner's ordinary time rate of pay for the normal number of hours per week under sub-section (1B), payments for regular overtime and regular shift allowances are to be included but only if— (a) during the relevant period under sub- section (1), the earner has worked overtime or shift work in accordance with a regular and established pattern; and (b) that pattern was substantially uniform in the number of hours of overtime worked; and (c) the earner would have continued to work overtime or shift work in s. 5 -- 8 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 7 accordance with that pattern if not for the injury.". 6. TAC no longer a reorganising body After section 10 of the Transport Accident Act 1986— "10A. TAC no longer a reorganising body (1) The Commission is by virtue of this section declared not to be a reorganising body. (2) The Commission is a statutory corporation under this Act and is not subject to the State Owned Enterprises Act 1992. (3) The Order of the Governor in Council made under section 7(1) of the State Owned Enterprises Act 1992 and published in the Government Gazette on 6 May 1993 is revoked. (4) This section does not affect the validity, status, operation or effect of any act, matter or thing done by or under the Order revoked under sub-section (3).". 7. Proceedings and resolutions of the Board (1) In section 20(6) of the Transport Accident Act 1986, for "present and voting" substitute "able to vote". (2) After section 20(6) of the Transport Accident Act 1986 insert— "(6A) Despite sub-section (4), a question is to be taken to have been determined under sub- section (6) if the majority is constituted by not less than 3 Directors.". (3) After section 20A(3) of the Transport Accident Act 1986 insert— s. 6 -- 9 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 8 "(4) Sub-sections (6) and (6A) of section 20 apply in respect of the making of a resolution under this section.". 8. Authorisation of disability services In section 23(1)(a) of the Transport Accident Act 1986 after "to be" insert "disability services or". 9. Extension of time for review In section 23(4) of the Transport Accident Act 1986, for "28 days" substitute "12 months". 10. Transport Accident Fund After section 27(3)(e) of the Transport Accident Act 1986 insert— "(ea) any payment of an amount to the State under section 29A or 29B;". 11. Capital and dividends For section 29A of the Transport Accident Act 1986 substitute— "29A. Repayment of capital (1) The capital of the Commission is repayable to the State, at the times and in the amounts, determined by the Treasurer after consultation with the Commission and the Minister. (2) In making a determination under this section, the Treasurer must have regard to any advice that the Commission has given to the Treasurer in relation to the Commission's affairs. 29B. Dividends s. 8 -- 10 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 9 (1) The Commission must pay to the State a dividend at the time and in the manner determined by the Treasurer after consultation with the Commission and the Minister. (2) The Treasurer must in determining the dividend policy that applies to the Commission have regard to the solvency margin determined to maintain the long term financial viability of the transport accident scheme.". 12. Sections 39 and 40 substituted For sections 39 and 40 of the Transport Accident Act 1986 substitute— '39. Circumstances in which a person is not entitled to compensation (1) The Commission is not liable to pay compensation under this Act in respect of a person who is injured or dies as a result of a transport accident if— (a) in the case of a transport accident involving a motor vehicle (other than a recreation vehicle)— (i) that occurred in Victoria—a report is not made to a member of the police force whether under section 61 of the Road Safety Act 1986 or otherwise; or (ii) that occurred in another State or in a Territory—a report is not made to a member of the police force of that State or Territory; and (b) in the case of a transport accident involving a railway train or a tram, a report of the transport accident is not s. 12 -- 11 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 10 made to the operator of the railway train or the tram. (2) Sub-section (1) does not apply in respect of a person if— (a) a person is injured or dies as a result of a transport accident involving a motor vehicle; and (b) a report of the transport accident was not made in accordance with sub- section (1)(a); and (c) the Commission determines that in all the circumstances the failure should be excused. (3) The Commission is not liable to pay compensation under this Act (other than under section 60) to a person who is injured in a transport accident if the person— (a) was driving a motor vehicle at the time of the transport accident; and (b) is convicted of an offence under section 318(1) of the Crimes Act 1958 in respect of driving the motor vehicle at that time. 40. Circumstances in which certain compensation is not payable or is reduced (1) The Commission is not liable to pay compensation under section 44 or 45 to a person who is injured as a result of a transport accident if— (a) the person— (i) was driving a motor vehicle at the time of the transport accident; and s. 12 -- 12 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 11 (ii) is convicted, in respect of driving the motor vehicle at that time, of an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law— unless the person satisfies the Commission that the intoxicating liquor or drug did not contribute in any way to the transport accident; or (b) the person was, at the time of the transport accident, the driver of, or a passenger in, a motor vehicle owned by the person in respect of which a transport accident charge payable in respect of a period including that time had not been paid; or (c) the person was, at the time of the transport accident, the driver of a motor vehicle and— (i) had never held a licence to drive a motor vehicle of that class under the Road Safety Act 1986 or a corresponding previous enactment or under a law that is in relation to the Road Safety Act 1986 a corresponding law or under a law of another country; or (ii) held or had held such a licence but, at the time of the transport accident, it was suspended or had been cancelled; or (iii) in the case of a transport accident occurring on or after the commencement of section 12 of the Transport Accident s. 12 -- 13 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 12 (Amendment) Act 2000, held or had held such a licence but, at the time of the transport accident, it had not been renewed for at least 3 years; or (d) the person— (i) was, at the time of the transport accident, the driver of or a passenger in a motor vehicle being used for or in connection with or in the commission of an indictable offence, stealing or attempting to steal a motor vehicle, resisting or preventing the lawful apprehension or detention of that person or any other person or intentionally causing or attempting to cause injury to that person or any other person; and (ii) is convicted of that offence. (2) The Commission is not liable to pay compensation under section 44, 45, 47, 48, 49, 50 or 51 to a person who is injured in a transport accident if the person— (a) was driving a motor vehicle at the time of the transport accident; and (b) is convicted of an offence in relation to the transport accident under section 49(1)(c), 49(1)(d), 49(1)(e), 56(2) or 56(7) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law. (3) The Commission is not liable to pay compensation under section 47, 48, 49, 50 or 51 to a person who is injured in a transport s. 12 -- 14 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 13 accident if the person was driving a motor vehicle at the time of the transport accident and is convicted, in respect of driving the motor vehicle at that time— (a) of an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or (b) of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law and the relevant level of concentration of alcohol was 0·24 grams or more per 100 millilitres of blood— unless the person satisfies the Commission that the intoxicating liquor or drug or the concentration of alcohol in the blood, as the case may be, did not contribute in any way to the transport accident. (4) Sub-section (5) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at that time— (a) of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is in relation to that Act, a corresponding law; and (b) the relevant level of concentration of alcohol was more than 0·05 grams per 100 millilitres of blood. s. 12 -- 15 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 14 (5) The compensation under section 44 or 45 in respect of a person to whom sub-section (4) applies— (a) is reduced by one-third if the concentration was more than 0·05 and less than 0·12; and (b) is reduced by two-thirds if the concentration was 0·12 or more and less than 0·24; and (c) is not payable if the concentration was 0·24 or more— unless the person satisfies the Commission that the concentration of alcohol in the blood of the person did not contribute in any way to the transport accident. (6) For the purposes of sub-section (1), a person who drives a motor vehicle at a particular time is not to be deemed never to have held a licence to drive a motor vehicle of that class if at that time— (a) the person was— (i) the holder of a learner permit in respect of a motor vehicle of that class under the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or (ii) participating in a training program accredited under the Road Safety Act 1986; and (b) in the case of a motor vehicle other than a motor cycle or a tractor, the person had a licensed driver (not being the holder of a licence issued on probation) sitting beside him or her. s. 12 -- 16 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 15 40A. General provisions (1) Sub-section (2) applies if— (a) a person who is injured as a result of a transport accident applies for compensation under this Act and a charge for an offence has been laid or it appears to the Commission that a charge for an offence may be laid against the person; and (b) the Commission is not liable under section 39 or 40 to make a payment to that person if he or she is convicted of that offence. (2) The Commission may withhold a payment referred to in sub-section (1)— (a) if the charge is laid within the limitation period after the date of the transport accident, until the charge is heard or withdrawn; or (b) if no such charge is laid within the limitation period after the date of the transport accident, until the expiration of that period. (3) In sub-section (2), "the limitation period after the date of the transport accident" means— (a) the period after the transport accident within which the charge could be laid; or (b) the period of two years after the transport accident— whichever is the shorter. s. 12 -- 17 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 16 (4) If— (a) a person is convicted of an offence referred to in section 39 or 40; and (b) the court by which the person was convicted made a finding as to the concentration of alcohol in the person's blood at a particular time— the court must, at the request of the Commission, cause a certificate with particulars of its finding to be given to the Commission. (5) For the purposes of this Act— (a) a certificate of a court given under sub- section (4) is evidence of the finding of the court as to the concentration of alcohol in a person's blood at a particular time; and (b) any finding of the court as to the concentration of alcohol in the blood of the person or as to the analysis of a sample of a person's blood or breath is conclusive evidence of the facts so found; and (c) a finding of a concentration of alcohol in the blood of a person exceeding 0·05 but otherwise unspecified is conclusive evidence that the concentration was more than 0·05 and less than 0·12.'. 13. Degree of impairment After section 46A(1) of the Transport Accident Act 1986 insert— "(1A) If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport s. 12 s. 13 -- 18 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 17 accident as at 18 months after a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period of 6 years after an injury resulting from the transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application. (1B) The period of 6 years referred to in sub- section (1A) applies— (a) in respect of a transport accident that occurred before the commencement of section 13 of the Transport Accident (Amendment) Act 2000, from the commencement of that section; and (b) in respect of a transport accident that occurs on or after the commencement of section 13 of the Transport Accident (Amendment) Act 2000, from the time that the transport accident occurs.". 14. Impairment benefit (1) After section 47(3) of the Transport Accident Act 1986 insert— "(3AA) The Commission must make any payment under sub-section (3) to the person in respect of whom the impairment benefit or interim benefit is assessed without setting off any legal costs.". (2) In section 47(3A) of the Transport Accident Act 1986 omit "or interim benefit". s. 14 -- 19 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 18 (3) For section 47(6) of the Transport Accident Act 1986 substitute— '(6) If as a result of two or more transport accidents, a person has a total degree of impairment that is more than 10 percent suffered as a result of the transport accidents— (a) this section and sections 48 and 54 apply— (i) on the first occasion that the impairment is 11 percent or more, as if a reference to a degree of impairment suffered as a result of a transport accident were a reference to the degree of impairment suffered as a result of one or more transport accidents; (ii) in relation to any subsequent transport accident, as if a reference to a degree of impairment suffered as a result of a transport accident were a reference to the degree of impairment suffered as a result all of the transport accidents and as if "B" in the formula in sub-section (2) was equal to the total degree of impairment suffered as a result all of the transport accidents for which compensation has already been made; and (b) section 93(3) does not apply unless the degree of impairment is determined to be 30 percent or more as the result of one of the transport accidents.'. -- 20 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 19 (4) For section 47(7) of the Transport Accident Act 1986 substitute— "(7) Despite section 46A(1), the Commission may for the purposes of proceedings for the recovery of damages in respect of the injury at any time determine the degree of impairment of a person who is injured as a result of a transport accident and who— (a) is or may be entitled to compensation under this Act; or (b) is not entitled to compensation under this Act by virtue of section 37, 38 or 38A— if the Commission is satisfied that the injury has stabilised or has substantially stabilised.". 15. Calculation of loss of earning capacity (1) In section 49(5) of the Transport Accident Act 1986, for the definition of "pre-accident earning capacity" substitute— ' "pre-accident earning capacity" in relation to an earner who suffers loss of earning capacity as a result of an injury in a transport accident, means the amount the Commission determines as the weekly amount the earner had the capacity to earn before the transport accident in employment reasonably available to the earner in view of the earner's training, skills and experience less such amount as the Commission reasonably considers to be the amount of income tax that would have been payable on that weekly amount under the Commonwealth Income Tax Assessment Act 1936.'. s. 15 -- 21 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 20 (2) After section 49(5) of the Transport Accident Act 1986 insert— '(5A) If an amount cannot be determined in accordance with the definition of "pre- accident earning capacity", the amount is deemed to be the amount which is equal to 80 percent of average weekly earnings of all employees for Victoria last published by the Australian Statistician.'. (3) After section 49(7) of the Transport Accident Act 1986 insert— "(8) The amount of a weekly payment under this section to which a person is entitled on or after 1 July 2000 in respect of a transport accident that occurred before 1 July 2000 is increased by 4 percent.". (4) In section 50(3)(b) of the Transport Accident Act 1986 after "capacity" insert ", less the earner's post-accident earning capacity". (5) In section 61(1) of the Transport Accident Act 1986, after "or this Division" (where twice occurring) insert "or calculated under section 49(5)". 16. Review of entitlement After section 55(6) of the Transport Accident Act 1986 insert— "(7) Despite sub-section (4), if the Commission has reviewed the earning capacity of a person who has returned to work by participating in an approved vocational s. 15 s. 16 -- 22 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 21 rehabilitation program and the return to work is unsuccessful, the Commission must— (a) restore the entitlement of the person to receive weekly payments; and (b) take into account earnings received during the period of the return to work.". 17. Surviving spouse In section 58(6) of the Transport Accident Act 1986, in the definition of "the earner's assessed earnings" for "but for the death" substitute "but for the transport accident". 18. Surviving children After section 59(11) of the Transport Accident Act 1986 insert— "(12) Sub-section (13) applies if— (a) the Commission has determined that it is liable to make payments under this section; and (b) the Tribunal upon a review determines that the Commission is liable to make payments under sections 57 and 58 to the surviving spouse of an earner. (13) If this sub-section applies— (a) State Trustees must, at the request in writing of the Commission, refund to the Commission any lump sum paid to State Trustees on behalf of a dependent child; and -- 23 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 22 (b) the Commission is entitled to set-off payments made as weekly payments and education allowance under this section against the payments that the Commission is liable to make under sections 57 and 58 to the surviving spouse of the earner. (14) Sub-sections (12) and (13) as inserted by section 18 of the Transport Accident (Amendment) Act 2000 apply to and in respect of a transport accident which occurs on or after the commencement of that section.". 19. Medical and like benefits (1) In section 60 of the Transport Accident Act 1986, for sub-sections (1), (1A) and (2) substitute— '(1) This section specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under this Act. (1A) The Commission is only liable to make a payment under this section if the application to the Commission for payment relates to an expense or cost incurred within the period of 2 years immediately before the application is made. (2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident— (a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, s. 19 -- 24 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 23 disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and (b) the reasonable costs of attendant care services that would be otherwise payable under paragraph (a) if the injured person had received those services in Australia because of the transport accident, if the injured person receives those services while travelling overseas for a period of not more than 8 weeks in any year; and (c) if the person, during the period of one month preceding the transport accident, was engaged mainly in housekeeping duties or the care of a child and did not receive salary or wages in respect of those duties or 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 housekeeping duties or care of the child, but the payment of the reasonable costs is not to exceed a total of 40 hours per week of housekeeping or child care services ; and (d) in the case of a person who is injured, the reasonable costs incurred after the transport accident in employing an authorised person to provide in Australia services of a domestic nature or services relating to nursing and attendance but not exceeding 40 hours s. 19 -- 25 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 24 per week, less the amount paid under paragraph (c). (2A) The Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident— (a) where death or severe injury results from the transport accident, the reasonable costs incurred in Australia of family counselling services provided to family members by a medical practitioner or registered psychologist not exceeding $1670 in respect of that death or severe injury; and (b) where death results from the transport accident, the reasonable costs incurred in Australia of burial or cremation. (2B) In sub-section (2A)(a)— "family member" means a spouse, parent, sibling or child of the person who dies as a result of a transport accident; "severe injury" means— (a) a severe closed head injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50 percent of the body; or (b) any other injury prescribed for the purposes of this sub-section. (2C) If a parent or guardian of a dependent child injured and admitted to hospital as a result of a transport accident incurs reasonable travelling or accommodation expenses by reason of visiting the dependent child in the hospital, the Commission is, subject to this s. 19 -- 26 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 25 Act, liable to pay as compensation, payments in respect of those expenses. (2D) If the spouse or a dependent child of a person injured and admitted to hospital as a result of a transport accident incurs reasonable travelling or accommodation expenses by reason of visiting the person who is an in-patient in a hospital that is located at least 100 kilometres from the spouse's or dependent child's normal residence, the Commission is, subject to this Act, liable to pay as compensation to the spouse and any dependent child, payments not exceeding $5000 in respect of those expenses.". (2) In section 23(1)(b) of the Transport Accident Act 1986 for "paragraph (b) or (c) of section 60(1)" substitute "section 60(2)(c) or 60(2)(d)". 20. Home and motor vehicle modifications (1) For section 60(3) of the Transport Accident Act 1986 substitute— "(3) If a person who is injured as a result of a transport accident reasonably requires modifications to a motor vehicle in Australia, the Commission is liable to— (a) pay the reasonable cost of modifications to the person's motor vehicle; or (b) contribute to the reasonable purchase cost of a motor vehicle, if the person does not own a motor vehicle which is capable of being modified. s. 20 -- 27 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 26 (4) If a person who is injured as a result of a transport accident reasonably requires modifications to a home in Australia because of the injury, the Commission is liable to— (a) pay the reasonable cost of modifications to the person's home; or (b) contribute to— (i) the reasonable purchase cost of a semi detachable portable unit; or (ii) reasonable relocation costs to another home— if the person does not own a home which is capable of being modified. (5) The Commission must not make a payment or contribution under sub-section (3) or (4) which exceeds $5000, unless the person enters into an agreement with the Commission in relation to the ownership of, and maintenance of modifications to, the motor vehicle, home or semi-detachable portable unit. (6) An agreement under sub-section (5) must include provisions in respect of— (a) subsequent modifications; (b) changes of ownership; (c) the frequency of modifications and changes of ownership.". (2) In section 61(2) of the Transport Accident Act 1986 after "$30 520," insert "$5000,". 21. Notice of accident s. 20 s. 21 -- 28 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 27 In sections 64(1) and 64(3) of the Transport Accident Act 1986 for "make a report in the prescribed form to the Commission within 28 days after the accident" substitute ", if requested by a notice served by the Commission, make a report in the prescribed form within 28 days of receiving the notice". 22. Sections 65 and 66 substituted For sections 65 and 66 of the Transport Accident Act 1986 substitute— "65. Provisions applying to notice under section 64 (1) A notice under section 64(1) or 64(3) may be served— (a) personally; or (b) by post addressed to the driver at the last known place of residence or business. (2) The notice must state that if the person on whom the notice is served does not make the report under section 64 within the specified period, a penalty of $50 is payable to the Commission. (3) If the Commission is satisfied that there is a good reason for the report not being made, the Commission must by further notice served in accordance with sub-section (1) at any time within 28 days after the notice under section 64 was served, withdraw the first notice. (4) If a notice under section 64 is withdrawn after the penalty has been paid, the Commission must refund the amount of the penalty. -- 29 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 28 (5) A person must not fail to comply with a notice under section 64 that has not been withdrawn. Penalty applying to this sub-section: 1½ penalty units. 66. Payment of penalty (1) If the penalty specified in a notice under section 64(1) or 64(3) is paid— (a) within 14 days after the expiry of the period specified in the notice; or (b) if the Commission so allows, at any time before service of a summons in respect of the failure to comply with the notice— no further proceedings may be taken against the person in respect of the failure to make a report. (2) Nothing in this Part prejudices the institution or prosecution of proceedings for an offence under section 65(5), if the penalty specified in a notice under section 64(1) or 64(3) has not been paid within the period specified in sub-section (1).". 23. Form of claim (1) Sections 67(1)(b) and 67(3) of the Transport Accident Act 1986 are repealed. (2) After section 67(1) of the Transport Accident Act 1986 insert— s. 22 s. 23 -- 30 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 29 "(1A) An authority to release information in a claim for compensation has effect and cannot be revoked until a claim is finally determined.". 24. Time for making claim under Part 3 (1) For section 68(1)(d) of the Transport Accident Act 1986 substitute— "(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.". (2) After section 68(2) of the Transport Accident Act 1986 insert— "(3) Despite sub-section (1) but subject to sub- section (2), if— (a) a person who is injured as a result of a transport accident to which Part 3 applies was not 18 years of age at the time of the transport accident; and (b) a claim for compensation by or on behalf of that person has not been made under that Part— the person may make a claim for compensation under that Part within one year of attaining the age of 18 years.". 25. Time period for considering claims In sections 70(1) and 70(2) of the Transport Accident Act 1986, for "28 days" substitute "21 days". 26. Medical examinations (1) In section 71(1) of the Transport Accident Act 1986, for "medical practitioners" substitute "medical service providers". s. 26 -- 31 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 30 (2) After section 71(2) of the Transport Accident Act 1986 insert— '(3) In sub-section (1), "medical service provider" means— (a) medical practitioner; (b) registered psychologist; (c) registered dentist; (d) registered optometrist; (e) registered physiotherapist; (f) registered chiropractor; (g) registered osteopath; (h) registered podiatrist.'. 27. Reviews (1) In section 77(4) of the Transport Accident Act 1986 for "the expiration of 28 days after a copy of the application has been served on the Commission" substitute— "— (a) notice is received under section 80 (2) that the Commission has re-affirmed the decision; or (b) the Commission is deemed by section 80(3) to have re-affirmed the decision; or (c) an application is made under section 78(5).". (2) In section 78(1) of the Transport Accident Act 1986 after "reconsider the decision" insert "or give the applicant a notice under sub-section (2)". (3) After section 78(2) of the Transport Accident Act 1986 insert— -- 32 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 31 "(3) An applicant must comply with a notice under sub-section (2) within 90 days of being given the notice. (4) The Commission must hold a conference or conclude the review within 28 days of receiving the particulars and information required under sub-section (2). (5) If the Commission has not received the particulars and information required under sub-section (2) within 180 days of giving the notice, the Commission may apply to the Tribunal to have the proceedings dismissed or struck out.". (4) After section 79(2) of the Transport Accident Act 1986 insert— "(3) This section is subject to sections 112 to 115 of the Victorian Civil and Administrative Tribunal Act 1998.". (5) For section 80(2) of the Transport Accident Act 1986 substitute— "(2) Within 14 days of holding a conference or concluding the review under section 78(4), the Commission must give notice in writing to the applicant and the Tribunal that it has determined to— (a) re-affirm the decision; or (b) vary or revoke the decision as specified in the notice. (3) If the Commission fails to comply with section 78(2) or 78(4) or fails to give notice under sub-section (2), the Commission is deemed to have determined to re-affirm the decision.". 28. Evidence as to alcohol or drugs s. 27 s. 28 -- 33 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 32 After section 93(6) of the Transport Accident Act 1986 insert— "(6A) Despite anything to the contrary in any other Act, a party may in proceedings under this section when adducing evidence on the question of whether any person was at the time of the transport accident under the influence of intoxicating liquor or any other drug, use the analysis or the results of the analysis of a blood sample or breath analysis lawfully taken under the Road Safety Act 1986 at or after the time of the transport accident. (6B) A party must not adduce material referred to in sub-section (6A) in evidence in proceedings under this section unless— (a) the party provides to all other parties in the proceedings, copies of the document or documents which form the evidence at least 6 weeks before the commencement of the trial of the proceedings; and (b) if notice is given to that party by another party at least 2 weeks before the commencement of the trial of the proceedings, the party causes the person who supplied the information contained in the document or documents to attend the trial of the proceedings for the purpose of cross- examination. (6C) Sub-sections (6A) and (6B) as inserted by section 28 of the Transport Accident (Amendment) Act 2000 apply to and in respect of a transport accident which occurs -- 34 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 33 on or after the commencement of that section.". 29. Release from liability for payments under section 60 After section 93(18) of the Transport Accident Act 1986 insert— "(18A) Despite sub-section (18), if an award of damages under this section includes an amount for the future cost of services of a kind set out in section 60 if provided in Australia, the Commission is released from any further liability for compensation under that section. (18B) Sub-section (18A) as inserted by section 29 of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.". 30. Procedures under section 93 After section 93C of the Transport Accident Act 1986 insert— "93D. Directions (1) For the purposes of section 93, the Minister may issue directions for or with respect to procedures under that section. (2) The directions must be published in the Government Gazette. (3) The directions may include directions about the provision of information by affidavit and the attending of conferences. (4) A person to whom a direction under this section applies, and the legal representatives and agents of such a person, must comply with the direction.". s. 29 -- 35 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 34 31. Indemnity (1) After section 94(2) of the Transport Accident Act 1986 insert— "(2A) Sub-section (1) does not apply in respect of any liability in respect of a transport accident involving an organised motor vehicle race or speed trial or a test in preparation for such a race or trial to which section 41(1) applies.". (2) After section 94(7) of the Transport Accident Act 1986 insert— "(7A) The entitlement of a person to recover against the Commission under sub-section (7) is not affected by the death of an owner or driver indemnified under that sub-section before any proceedings are commenced.". 32. Unindemnified vehicles For section 96(4) of the Transport Accident Act 1986 substitute— "(4) It is a defence to proceedings under sub- section (3)— (a) in the case of the owner of an unindemnified vehicle, that the vehicle being an unindemnified vehicle was not the result of any default of the owner; (b) in the case of the driver of an unindemnified vehicle— (i) that judgment could not have been obtained against the driver but for this section; or (ii) that the driver had reasonable grounds for believing that he or she had the authority of the owner s. 31 -- 36 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 35 to drive the vehicle and that the vehicle was not an unindemnified vehicle.". 33. Indemnity by third party In section 104(2) of the Transport Accident Act 1986, after "the amount" insert "(including the payment of interest)". 34. Rates of charges (1) After section 110(1) of the Transport Accident Act 1986 insert— '(1AA) In this section "prescribed" means prescribed by a charges order made under this section after the commencement of section 34 of the Transport Accident (Amendment) Act 2000.'. (2) In section 110(6) of the Transport Accident Act 1986, for "regulations" (wherever occurring) substitute "charges order". (3) After section 110(7) of the Transport Accident Act 1986 insert— "(8) The Governor in Council may on the recommendation of the Commission by Order in Council make a charges order. (9) A charges order— (a) must be published in the Government Gazette; (b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the order. s. 33 -- 37 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 36 (10) A charges order may— (a) apply generally or be limited in its application by reference to specified exceptions or factors; (b) apply differently according to different factors of a specified kind; (c) specify different methods of calculation whether by reference to formulas, scales, tables or other means; (d) apply, adopt or incorporate (with or without modification) the provisions of any document, code, standard, rule, specification or method whether as formulated, issued, prescribed or published at the time the order is made; (e) authorise any specified person or body to determine or apply a specified matter or thing.". 35. Amendments consequential to section 34 (1) Section 110A of the Transport Accident Act 1986 is repealed. (2) Section 132(1)(e) of the Transport Accident Act 1986 is repealed. 36. Provision of information After section 127(3) of the Transport Accident Act 1986 insert— '(3A) In sub-section (3), "employer" includes a former employer at any time during the period of 3 years immediately preceding the transport accident, of the person who is injured or dies in the transport accident.'. s. 34 s. 36 -- 38 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 37 _______________ -- 39 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 38 PART 3—AMENDMENT OF ACCIDENT COMPENSATION ACT 1985 37. Amendment of section 135A After section 135A(2A) of the Accident Compensation Act 1985 insert— "(2AA) For the purposes of the procedures relating to an application for a determination from a worker made under sub-section (2B) and received by the Authority or a self-insurer after 10 August 2000 but before 1 September 2000, sub-sections (2B), (2D) and (2DB) have effect as if the reference in each of those sub-sections to 120 days was a reference to 210 days.". 38. Liability of Transport Accident Commission In section 137(5B) of the Accident Compensation Act 1985 after "death or injury" (where last occurring) insert "less an amount equal to the employer's excess that would be applicable under section 125A if a WorkCover insurance policy was in force". 39. Amendment of proposed section 134AG and commencement (1) After section 2(7) of the Accident Compensation (Common Law and Benefits) Act 2000 insert— "(7A) Section 19 (as amended by section 39 of the Transport Accident (Amendment) Act 2000) comes into operation on the day after the day on which the Transport Accident (Amendment) Act 2000 receives the Royal Assent.". s. 37 -- 40 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 39 (2) In section 2(8) of the Accident Compensation (Common Law and Benefits) Act 2000 omit "19,". (3) In section 19 of the Accident Compensation (Common Law and Benefits) Act 2000, in proposed section 134AG— (a) in sub-section (1)(a), after "section 134AB" insert ", 135, 135A or 135B"; (b) in sub-section (4), after "Section 134AB(29)" insert ", 135A(13B) or 135B(7)". 40. Supreme Court-limitation of jurisdiction After section 252D of the Accident Compensation Act 1985 insert— "252E. Supreme Court-limitation of jurisdiction It is the intention of section 134AG as amended by section 39 of the Transport Accident (Amendment) Act 2000 to alter or vary section 85 of the Constitution Act 1975.". _______________ s. 40 -- 41 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 40 PART 4—AMENDMENT OF DANGEROUS GOODS ACT 1985 41. Amendment of Dangerous Goods Act 1985 (1) In section 3(1) of the Dangerous Goods Act 1985— (a) insert the following definition— ' "ADG Code" means the document known as the Australian Code for the Transport of Dangerous Goods by Road and Rail (Sixth edition or a later prescribed edition), as amended from time to time;'; (b) the definition of "Competent Authorities Sub-committee" is repealed; (c) in the definition of "dangerous goods" for "Transport Code" substitute "ADG Code"; (d) the definition of "Transport Code" is repealed. (2) In the Dangerous Goods Act 1985— (a) in sections 4(f), 9B(4), 10(1) and 10(2) for "Transport Code" substitute "ADG Code"; (b) in section 10(1), "or" after paragraph (b) and paragraph (c) are repealed; (c) section 14(1) is repealed. (3) After section 10(2) of the Dangerous Goods Act 1985 insert— '(3) Any reference in any Act, regulation, local law, subordinate instrument or other document to the "Transport Code" is as from the commencement of section 41 of the Transport Accident (Amendment) Act 2000 to be construed as a reference to the s. 41 -- 42 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 41 "ADG Code", unless the context otherwise requires.'. ═══════════════ s. 41 -- 43 of 44 -- Act No. 84/2000 Transport Accident (Amendment) Act 2000 42 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 October 2000 Legislative Council: 31 October 2000 The long title for the Bill for this Act was "to amend the Transport Accident Act 1986 to increase certain compensation payments, to provide for improved access to benefits and to revise claims procedures, to amend the Accident Compensation Act 1985 and the Dangerous Goods Act 1985 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 5 October 2000 Legislative Council: 31 October 2000 Absolute majorities: Legislative Assembly: 26 October 2000, 22 November 2000 Legislative Council: 21 November 2000 Endnotes -- 44 of 44 --