Division 1A Provisions relating to Nominal Insurer, Insurance Fund and scheme agents
154A Establishment of Nominal Insurer
(1) There is established by this Act a Workers Compensation Nominal Insurer.(2) The Nominal Insurer:(a) is a legal entity, and(b) may take proceedings and be proceeded against in the name of the Workers Compensation Nominal Insurer, and(c) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and(d) may do and suffer all other things that persons may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions.(3) The Nominal Insurer is not and does not represent the State or any authority of the State.
154B Functions of Nominal Insurer
(1) The Nominal Insurer is taken to be a licensed insurer as if it were the holder of a licence in force under Division 3 of Part 7 and as if that licence were not subject to any conditions.(2) The Nominal Insurer has such functions as may be necessary or convenient for enabling the Nominal Insurer to function and operate to the fullest extent as a licensed insurer.(3) Without limiting subsection (2), the Nominal Insurer may issue directions to any employer with respect to the insurance arrangements of the employer.(4) The Nominal Insurer has such other functions as may be conferred or imposed on the Nominal Insurer by or under this or any other Act or law or by the regulations.(5) The liabilities of the Nominal Insurer as insurer under a policy of insurance can only be satisfied from the Insurance Fund and are not liabilities of the State, the Authority or any authority of the State.
154C Authority to act for Nominal Insurer
(1) The Authority acts for the Nominal Insurer and anything done or omitted to be done by the Authority on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer.(2) In acting for the Nominal Insurer, the Authority has and may exercise all the functions of the Authority under this Act, the 1998 Act or any other Act or law.(3) A liability incurred by the Authority when acting for the Nominal Insurer is a liability of the Nominal Insurer and not a liability of the Authority or the State.(4) To remove doubt, it is declared that the provisions of Division 2A of Part 3 of the Public Finance and Audit Act 1983 extend to authorise a performance audit by the Auditor-General under that Division in respect of any activities of the Authority when acting for the Nominal Insurer.
154D Establishment and operation of Insurance Fund
(1) There is established a fund to be known as the “Workers Compensation Insurance Fund”.(2) The assets of the Insurance Fund are subject to a statutory trust to be held on trust for the purposes to which assets of the Insurance Fund are authorised or required to be applied by or under this Act and for the benefit of workers and employers as provided by this Act.(3) The Nominal Insurer is responsible for managing the operation of the Insurance Fund, including the investment of the assets of the Insurance Fund. The assets of the Insurance Fund may be invested in such manner as the Nominal Insurer thinks fit, subject to the investment policies determined by the Board.(4) Employers are entitled to participate in the distribution of any surplus in the Insurance Fund, and are responsible for meeting any deficit in the Insurance Fund, by means of the fixing of premiums, levies and contributions as provided by this Act.(5) The assets of the Insurance Fund cannot be applied for the purpose of enabling any payment as a dividend to the credit of the Consolidated Fund, whether by virtue of a direction of the Minister under this Act or the 1998 Act or pursuant to a requirement under section 59B of the Public Finance and Audit Act 1983, or otherwise.(6) For the purposes of this Act and any other Act or law, each of the State, the Nominal Insurer, the Authority and any authority of the State:(a) has no beneficial interest in or entitlement to the assets of the Insurance Fund, and(b) has no liability to meet any deficit in the Insurance Fund and no entitlement to any surplus in the Insurance Fund, and(c) is not trustee of the Insurance Fund.(7) The regulations may make provision for or with respect to the manner in which the financial statements of, or relating to, the Insurance Fund are to be prepared.
(1) The following amounts are to be paid to, and become the assets of, the Insurance Fund:(a) premiums received by the Nominal Insurer for policies of insurance issued under this Act,(b) other amounts paid to the Nominal Insurer in connection with any such policy of insurance, including:(i) any amount paid by the Authority under section 175, and(ii) any late payment fee paid by an employer for the late payment of a premium, and(iii) any amount repaid by an employer pursuant to section 160, and(iv) any money recovered under section 151Z (or under section 64 of the former Act), and(v) any money recovered under a re-insurance contract or arrangement,(c) income (including realised and unrealised capital gains) arising from the investment of the assets of the Insurance Fund,(d) any other money authorised to be paid into the Insurance Fund by or under this Act or the regulations.(e) any money paid into the Insurance Fund under section 7 of the Safety, Return to Work and Support Board Act 2012.(2) The assets of the Insurance Fund may be applied for the following purposes only:(a) meeting claims under policies of insurance issued (or taken to have been issued) by the Nominal Insurer other than a claim transferred pursuant to a claims transfer agreement under Division 6,(b) the payment of direct expenses associated with any such claims (not being expenses of a class excluded by the regulations from this paragraph),(c) the payment to the Authority or to persons employed by or acting for the Authority of management expenses relating to the Insurance Fund (not exceeding such amount as the Minister may from time to time determine),(d) the provision of rebates or refunds (including interest) to employers by the Nominal Insurer for overpayment of premiums for policies of insurance issued (or taken to have been issued) by the Nominal Insurer or for any other reason that the Nominal Insurer considers appropriate,(e) the payments required for any contract or arrangement for re-insurance in respect of liabilities under policies of insurance issued (or taken to have been issued) by the Nominal Insurer,(f) meeting the costs of any actuarial investigation of the Insurance Fund,(g) meeting the costs of any management, consultancy or auditing fees incurred in connection with the exercise of the functions of the Nominal Insurer,(h) the payment by the Nominal Insurer of contributions under this Act to the Guarantee Fund or the Terrorism Re-insurance Fund as referred to in section 239AE,(h1) the payment to the WorkCover Authority Fund of amounts approved by the Minister under section 35 of the 1998 Act,(i) the payments authorised or required to be made by the Nominal Insurer to scheme agents under their agency arrangements,(j) exercising any other functions of the Nominal Insurer,(j1) the transfer of assets of the Insurance Fund to a claim agent pursuant to a claims transfer agreement under Division 6,(k) making any other payment authorised by or under this Act or the regulations.(3) Money in the Insurance Fund is also authorised to be made available for investment as provided by section 7 of the Safety, Return to Work and Support Board Act 2012.
154F Auditing of Insurance Fund
(1) The Auditor-General is to inspect and audit the accounts and records of financial transactions of or relating to the Insurance Fund at least once during each financial year.(2) The Auditor-General is to report to the Minister as to the result of any such inspection and audit and as to such irregularities or other matters as in the judgment of the Auditor-General call for special notice.(3) The Auditor-General is to include a reference to any audit conducted under this section in the report referred to in section 52 (1) of the Public Finance and Audit Act 1983 or in any special report that the Auditor-General may at any time think fit to make under section 52 (3) of that Act.(4) The Nominal Insurer must pay to the Auditor-General out of the Insurance Fund such amounts, at such times, as the Minister decides towards defraying the costs and expenses of any inspection and audit under this section.Note. The Auditor-General has powers under section 36 of the Public Finance and Audit Act 1983 in respect of an inspection and audit under this section.
154G Agents of Nominal Insurer
(1) The Nominal Insurer may enter into arrangements (agency arrangements) by contract or otherwise for the appointment of persons to act as agent (a scheme agent) for the Nominal Insurer in connection with the exercise of any functions of the Nominal Insurer.(2) A scheme agent is, in the exercise of functions under an agency arrangement, subject to the direction and control of the Nominal Insurer as provided by the terms of the agency arrangement.(3) A person incurs no personal liability for or in connection with a liability incurred by the person as agent for the Nominal Insurer in the exercise of functions in good faith with due care and skill and within the scope of the agent’s actual authority to act.(4) This section does not limit the power of the Authority to act for the Nominal Insurer.
154H Authority’s functions not limited by agency arrangement
Nothing in an agency arrangement limits or otherwise affects the exercise by the Authority of any function of the Authority with respect to licensed insurers or scheme agents.
154I Authority’s functions extended to scheme agents
Subject to this Act, any function conferred on the Authority with respect to licensed insurers (or insurers generally) by or under a provision of this Act, the 1998 Act or the regulations under either Act may be exercised in relation to scheme agents, and for that purpose:(a) a reference to a licensed insurer or insurer in a provision conferring such a function is to be read as including a reference to a scheme agent, and(b) a reference to the conditions of a licence of a licensed insurer is to be read as including a reference to the conditions of a scheme agent’s agency arrangement with the Nominal Insurer.
154J Refusal of insurance by scheme agents
(1) A scheme agent who is authorised to issue policies of insurance on behalf of the Nominal Insurer must not refuse to issue a policy of insurance to any employer or to renew a policy of insurance issued to an employer, except with the consent of the Nominal Insurer or as required or permitted by an express provision of the agency arrangement.Maximum penalty: 1,000 penalty units.
(2) The WorkCover Guidelines under the 1998 Act may provide for the circumstances in which the consent of the Nominal Insurer as referred to in subsection (1) may be given.
(1) Subject to the regulations, all records and other documents made and kept, or received and kept, by a scheme agent in the exercise of functions on behalf of the Nominal Insurer are the property of the Nominal Insurer.(2) The Nominal Insurer may give directions to a scheme agent with respect to possession, custody and control of, and the granting of access to, those records and other documents.(3) A scheme agent must comply with any such directions given by the Nominal Insurer to the scheme agent.Maximum penalty: 1,000 penalty units.
(4) A reference in this section to a scheme agent includes a reference to a person who was formerly (but is no longer) a scheme agent.
154L Remuneration of scheme agents
(1) A scheme agent is entitled to payment by the Nominal Insurer of remuneration (whether as fees, commission or otherwise) as provided by or under the relevant agency arrangement.(2) The remuneration of scheme agents is payable by the Nominal Insurer out of the Insurance Fund.
154M Certain provisions extended to scheme agents
(1) A reference in section 163, 164 or 169 to a licensed insurer or insurer includes, in the application of the section to any matter concerning the Nominal Insurer, a reference to a scheme agent acting on behalf of the Nominal Insurer in connection with that matter.(2) Except as may otherwise be provided by the regulations, a reference in any of the following provisions of the 1998 Act to a licensed insurer or insurer includes, in the application of the provision to any matter concerning the Nominal Insurer, a reference to a scheme agent acting on behalf of the Nominal Insurer in connection with that matter:Sections 43, 45, 47, 50, 52, 56–59, 65, 66, 69, 71–75, 76, 107, 108, 113, 117, 118, 126, 136, 141, 232, 235A, 235B, 238, 260, 261, 264, 266–272, 274–276, 279, 280, 281, 282, 284, 287, 291, 295, 301, 308, 330, 337, 345 and 356.
(1) The regulations may make provision for or with respect to the following:(a) requiring the making and keeping of records by scheme agents and the giving of access to those records by scheme agents,(b) the obligations of scheme agents with respect to confidentiality and disclosure of information (including personal information),(c) the ownership, custody and control of records and other documents made and kept, or received and kept, by scheme agents.(2) The regulations may create offences, punishable by a penalty not exceeding 200 penalty units, for a contravention by a person of an obligation imposed on the person by or under an agency arrangement.(3) A reference in this section to a scheme agent includes a reference to a person who was formerly (but is no longer) a scheme agent.
155 Compulsory insurance for employers
(cf former s 18 (1), (5), (6))
(1) An employer (other than a self-insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such worker.Maximum penalty: 500 penalty units or imprisonment for 6 months, or both.
(1AA) An employer must not at any one time maintain in force more than one policy of insurance for the purposes of subsection (1) (ignoring any policy of insurance effected by the employer for the purposes of compliance with section 31 of the Coal Industry Act 2001).Maximum penalty: 500 penalty units.
(1A) In subsection (1), injury includes a dust disease as defined in the Workers’ Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined.(1B) A policy of insurance (whether issued before, on or after the commencement of this subsection) does not, subject to the regulations, insure an employer’s liability for GST payable on the settlement of a claim and the employer’s uninsured liability for GST in these circumstances is not a liability to which subsection (1) applies.A regulation made for the purposes of this subsection may apply to a policy of insurance whether issued before, on or after the commencement of this subsection, as the regulation may provide.
In this subsection, employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.
Note. An employer may incur liability for GST on the settlement of a claim if the employer has failed to notify the insurer of the employer’s entitlement to an input tax credit for a premium paid by the employer for the policy of insurance issued by the insurer.(2) Where several persons may become liable in respect of an injury to the same worker:(a) it shall be sufficient to obtain a joint policy of insurance in respect of that liability, and(b) the premium chargeable in respect of the policy shall not exceed the current rates for insurance of an employer’s liability in respect of workers engaged in the same industry, trade or business.(3) In any proceedings for an offence against subsection (1), proof:(a) that an employer, not being a self-insurer, who has been served pursuant to section 161 (1) with a notice requiring the employer to produce for inspection (or to supply particulars, specified in the notice, of) a policy of insurance obtained by the employer and in force at a specified date or between specified dates has not so produced (or so supplied specified particulars of) any such policy so in force, and(b) that the time for compliance with the notice has expired,shall be sufficient evidence, unless the contrary is proved, that at that date or between those dates the employer had failed to comply with subsection (1).(3A) It is a defence to a prosecution for an offence under this section concerning an employer’s liability in respect of a worker if the court is satisfied that at the time of the alleged offence:(a) the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker’s employment was not connected with this State, and(b) the employer had workers compensation cover in respect of the worker’s employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker’s employment was connected under section 9AA.(3B) In subsection (3A), workers compensation cover means insurance or registration required under the law of a State or Territory in respect of liability for statutory workers compensation under that law.(4) The Authority may undertake not to prosecute a person for an offence under this section in respect of a failure by the person to obtain or maintain in force a policy of insurance on condition that the person pays to the Authority the amount that the Authority is entitled to recover under section 156 in respect of the failure or such lesser amount as the Authority may determine to accept. If the person pays the amount in compliance with any terms and conditions of the undertaking, the person is not liable to be proceeded against or convicted for an offence under this section in respect of the failure concerned.(5) The regulations may make provision for or with respect to an amnesty for contraventions of this section, such that a person who satisfies the conditions of the amnesty is not liable to be prosecuted for an offence under this section in respect of such a contravention and is not liable to recovery under section 156 in respect of such a contravention.
155AA Exempt employers not required to obtain policy of insurance
(1) An employer is an exempt employer during a financial year while the employer has reasonable grounds for believing that the total amount of wages that will be payable by the employer during the financial year to workers employed by the employer will be not more than the exemption limit for that financial year.(2) An employer is not an exempt employer whenever the employer:(a) is a member of a group constituted under Division 2A, or(b) employs a person under a training contract (within the meaning of the Apprenticeship and Traineeship Act 2001).Note. A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship.(3) An employer who is an exempt employer for the whole or any part of a financial year is deemed to have obtained from the Nominal Insurer (and the Nominal Insurer is deemed to have issued) a policy of insurance in compliance with section 155 (an exempt employer policy) for any period for which the employer is an exempt employer during the financial year. No premium is payable for an exempt employer policy.(4) An exempt employer policy covers the employer for any period for which the employer is an exempt employer but does not cover the employer for any period for which the employer has actually obtained a policy of insurance under section 155.(5) An administration fee of an amount prescribed by the regulations is payable to the Nominal Insurer by an employer in respect of each claim made against the employer in respect of an injury to a worker received during any period for which an exempt employer policy covers the employer.(6) The regulations may make provision for or with respect to the payment of an administration fee, including provision for or with respect to any of the following:(a) the period within which an administration fee must be paid,(b) the payment of a late payment fee if an administration fee is not paid within the required period,(c) the full or partial waiver or refund of an administration fee or late payment fee.(7) The Nominal Insurer is entitled to recover as a debt in a court of competent jurisdiction an administration fee payable by an employer together with any late payment fee payable.(8) In this section:exemption limit for a financial year means $7,500 or such other amount as may be fixed by an insurance premiums order as the exemption limit for that financial year.
financial year means a period of 12 months commencing on 1 July in any year.
wages means wages as defined in section 174 and includes any distribution to a worker as a beneficiary under a trust that would (under section 174AA) constitute wages for the purposes of section 174.
155A Policies to be for 12 month periods
A policy of insurance issued after the commencement of this section must be issued for a period of 12 months, unless the Authority otherwise approves in a particular case or class of cases.
156 Recovery of double premiums for contravention of insurance requirements
(1) If an employer fails to obtain or maintain in force a policy of insurance as required by section 155 (1) in respect of any period, the Authority may recover from the employer in a court of competent jurisdiction as a debt due to the Authority a sum equal to twice the amount of the premium that would have been payable for the issue of a policy of insurance to the employer in respect of that period or such lesser amount as the Authority may agree to accept in any particular case.(1A) If an employer maintains in force at any one time more than one policy of insurance for the purposes of section 155 (1) (in contravention of section 155 (1AA)), the Authority may:(a) determine an amount as the amount of premium that the employer has avoided by maintaining more than one policy of insurance, and(b) recover from the employer in a court of competent jurisdiction as a debt due to the Authority a sum equal to twice the amount determined under paragraph (a) or such lesser amount as the Authority may agree to accept in any particular case.(2) The Authority may recover a sum from an employer under this section whether or not the employer has been proceeded against or been convicted for any relevant offence against section 155 (1) or (1AA).(3) Any such sum recovered by the Authority shall be paid into the WorkCover Authority Fund.(4) A certificate executed by the Authority and certifying that a sum specified in the certificate is the sum equal to twice the amount of premium that would have been payable for the issue of a policy of insurance to an employer so specified in respect of a period so specified is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the matters specified in the certificate.(4A) A certificate executed by the Authority and certifying that a sum specified in the certificate is the sum equal to twice the amount of premium that an employer has avoided by maintaining more than one policy of insurance in contravention of section 155 (1AA) is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the matters specified in the certificate.(5) In the absence of information that would enable the Authority to accurately determine the premium that would have been payable for the issue of a particular policy of insurance, the following provisions have effect:(a) the Authority is entitled to make an estimate of that premium (based on the information available to the Authority),(b) the Authority’s estimate is presumed to be accurate as to the premium that would have been payable and cannot be challenged on the basis that insufficient information was available to enable the making of an accurate assessment, but can be challenged by the provision of information that enables a more accurate estimate to be made,(c) if the Authority’s estimate is successfully challenged and as a result a more accurate estimate is substituted, the proceedings are not open to challenge merely because of the inaccurate estimate and may continue to be heard and be determined on the basis of the substituted assessment.(6) A court that convicts an employer of an offence under section 155 may, on the application of the Authority, order the employer to pay to the Authority the amount that the court is satisfied the Authority is entitled to recover from the employer under this section in respect of the failure to which the offence relates. Any amount paid by an employer under such an order is taken to have been recovered from the employer under subsection (1) or (1A) and is to be dealt with accordingly.(6A) For the purposes of subsection (6), a court that makes a finding that an employer is guilty of an offence under section 155 without proceeding to a conviction is taken to have convicted the employer of the offence.(7) The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.(8) Despite any other provision of this section, if the Authority is satisfied that:(a) the reason for the employer not being insured against liability to pay compensation to the worker is that the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker’s employment was not connected with this State, and(b) the employer had workers compensation cover in respect of the worker’s employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker’s employment was connected under section 9AA,the employer is not liable under this section in respect of that liability.(9) In subsection (8), workers compensation cover means insurance or registration required under the law of a State or Territory in respect of liability for statutory workers compensation under that law.
156A Misleading conduct by insurers and insurance intermediaries
(1) In this section:insurance intermediary means:
(a) a person who arranges contracts of insurance in New South Wales:(i) for reward, or(ii) as an agent for a person carrying on a business of insurance, or(iii) as an agent for the Nominal Insurer, or(b) a financial services licensee (as defined in section 761A of the Corporations Act 2001 of the Commonwealth) whose licence covers arranging contracts of insurance as an agent for a person carrying on a business of insurance, or(c) a regulated principal (as defined in section 1430 of the Corporations Act 2001 of the Commonwealth) when carrying on business as an insurance broker as authorised by Subdivision D of Division 1 of Part 10.2 of that Act.insurer means a person who carries on insurance business as defined in the Insurance Act 1973 of the Commonwealth.
(2) An insurer or insurance intermediary must not make a representation with respect to any insurance (whether by means of an advertisement or otherwise) that could reasonably be expected to cause an employer to believe that the insurance is comprehensive for business needs, unless:(a) the insurance includes the insurance required by this Act or the 1998 Act, or(b) the representation includes a clear statement to the effect that the insurance does not include workers compensation insurance and that workers compensation insurance is compulsory for employers.(3) An insurer or insurance intermediary who contravenes this section is guilty of an offence.Maximum penalty: 200 penalty units.
(4) In any action under section 144, 145, 145A or 156 in respect of a failure by an employer to obtain or maintain in force a policy of insurance, the court hearing the action may order that a specified insurer or insurance intermediary be joined as a party in the proceedings if the court thinks that the insurer or insurance intermediary may be culpable in the matter.(5) An insurer or insurance intermediary is culpable in a matter if it appears that the insurer or insurance intermediary has engaged in conduct that constitutes a contravention of this section (whether or not the insurer or insurance intermediary has been prosecuted for or convicted of an offence in respect of the contravention) and that conduct caused or contributed significantly to the failure by the employer to obtain or maintain the insurance concerned.(6) In any proceedings in which an insurer or insurance intermediary is joined as a party under this section the court hearing the proceedings may, if satisfied that the insurer or insurance intermediary is culpable in the matter, order that the insurer or insurance intermediary is to be jointly and severally liable with any other party in respect of any amount ordered to be paid by that other party in the proceedings or is to be separately liable, in place of that other party, as to the whole or a specified part of any amount that the other party might be ordered to pay in the proceedings.(7) (Repealed)
156B Recovery from directors of corporation—insurance requirements
(1) If the Authority is entitled to recover an amount from a corporation under section 156 (even if the corporation has ceased to exist) and the amount is not recoverable from the corporation, the Authority is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time.(2) An amount is considered to be not recoverable from a corporation if the Authority certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.(3) A person is a culpable director of a corporation at the relevant time if the person was a director of the corporation at any time during the contravention to which the entitlement of the Authority relates (whether or not the corporation has been proceeded against or convicted of an offence in respect of that contravention).(4) A person is not a culpable director of a corporation if the person establishes that:(a) the contravention by the corporation occurred without the person’s knowledge, or(b) the person was not in a position to influence the conduct of the corporation in relation to the contravention, or(c) the person, being in such a position, used all due diligence to prevent the contravention by the corporation.(5) If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.(6) A director from whom an amount is recovered under this section is entitled to recover the amount from the corporation.(7) This section does not apply to an entitlement of the Authority under section 156 that arises from the failure by a corporation to obtain or maintain insurance in respect of any period before the commencement of this section.
157 Insurers not to refuse insurance
(cf former s 18 (2))
(1) A licensed insurer shall not, except with the consent of the Authority, refuse to issue a policy of insurance to any employer or to renew a policy of insurance issued to an employer.(2) Without affecting the generality of subsection (1), the Authority may consent to any such refusal in order that the licensed insurer does not contravene any condition of the licence.(3) This section does not apply:(a) to a specialised insurer, or(b) in any case where the employer has not complied with any conditions prescribed by this Act or the regulations in respect of the issue or renewal of the policy of insurance.Maximum penalty: 100 penalty units.
159 Provisions of policies of insurance
(cf former s 18 (3) (a), (a1), (3A), (3B), (3C))
(1) A policy of insurance shall, in so far as it relates to any liability under this Act, contain only such provisions as are prescribed by the regulations, but (subject to the regulations) may contain such other provisions relating to any liability at common law or under any Act or Commonwealth Act as are appropriate to any particular case.(1A) The regulations may prescribe different provisions for different classes of policies. The regulations may also authorise the Authority to approve different provisions for policies of insurance issued by a specialised insurer in respect of domestic or similar workers.(2) A policy of insurance shall provide that:(a) the insurer as well as the employer is directly liable to any worker insured under the policy and, in the event of the worker’s death, to the dependants or other persons to pay the compensation under this Act or other amount independently of this Act for which the employer is liable, and(b) the insurer is bound by and subject to any judgment, order, decision or award given or made against the employer of any such worker in respect of the injury for which the compensation or amount is payable.(3) A policy of insurance issued to a person shall, in addition to containing any other provisions required under this section, contain such provisions as are prescribed by the regulations for or in relation to:(a) the insurance of the person, in the event of the person being, or becoming, a principal under a contract as referred to in section 20 (1), against a liability arising under section 20,(b) providing that the insurer, as well as the person, shall, while that person is a principal under a contract as referred to in section 20 (1), be directly liable to pay to a worker employed by a contractor under that contract and, in the event of the worker’s death, the dependants or other persons, the compensation for which that person is liable under section 20 (1), and(c) providing that the insurer is bound by, and subject to, any judgment, order, decision or award given or made against the person in respect of any liability arising under section 20.(4) A policy of insurance obtained by an employer in respect of workers in any trade or business shall, notwithstanding anything contained in that policy, apply to and have effect in respect of all workers employed by the employer in that trade or business.(5) A liability, under a policy of insurance, of an insurer to a worker under a provision inserted in the policy under subsection (2) or (3) is enforceable as if the worker were a party to the policy.(6) A contravention of subsection (1), (2) or (3) does not annul a policy of insurance or affect the liability of the insurer to the person insured under the policy.(7) A licensed insurer shall not issue a policy of insurance in contravention of subsection (1), (2) or (3).Maximum penalty (subsection (7)): 50 penalty units.
160 Recovery of excess from employer
(cf former s 18 (3) (a2))
(1) In this section:prescribed excess amount, in respect of a weekly compensation claim paid under a policy of insurance, means the prescribed excess amount specified by the relevant insurance premiums order that applies to that policy.
small business employer, in relation to a policy of insurance, means an employer who, under the policy, is liable to pay premiums not exceeding such amount as is prescribed by the regulations (the calculation of that liability being determined in the manner so prescribed).
weekly compensation claim means a claim for weekly payments of compensation payable to a worker in respect of any period of total or partial incapacity for work.
(2) An employer is required to repay to the insurer under a policy of insurance that the employer has obtained under section 155:(a) the prescribed excess amount in respect of each weekly compensation claim that the insurer has paid under the policy, or(b) if the amount that the insurer has paid in respect of any such claim is less than the prescribed excess amount—the amount so paid.(3) An employer is not required to comply with subsection (2) to the extent that:(a) the employer has paid an amount of money directly to an injured worker in relation to a period that is the subject of a weekly compensation claim made by the worker, and(b) the amount paid by the employer is an amount or is included in an amount for which the employer’s insurer is liable under the relevant policy of insurance to indemnify the employer in respect of the claim, and(c) the employer’s insurer has offset against the amount payable under that policy in respect of the claim the amount referred to in paragraph (a).(4) An employer who, in relation to a period that is the subject of a weekly compensation claim made by an injured worker:(a) has paid no money to the worker, or(b) has paid an amount to the worker that is less than the amount which the employer would, but for this subsection, be required to repay under subsection (2),is nevertheless not required to comply with that subsection to the extent that the employer’s insurer has debited against any amount standing to the employer’s credit in respect of the premiums payable for the relevant policy of insurance:(c) in the case referred to in paragraph (a)—the amount that the employer would otherwise be required to repay under that subsection, or(d) in the case referred to in paragraph (b)—the difference between the amounts referred to in that paragraph.(4A) Subsection (2) applies to a small business employer who has obtained a policy of insurance under section 155 only to the extent that the employer and the insurer have agreed that the employer is required to repay to the insurer the prescribed excess amount (or such smaller amount as is agreed on) in respect of each weekly compensation claim paid by the insurer under the policy.(4AA) For the purposes of this section, the amount of a weekly compensation claim paid under a policy of insurance is the total amount of weekly payments made to the claimant in respect of the injury concerned, and that amount does not include any other payments associated with the claim.(4B) If liability for a claim is apportioned between 2 or more successive insurers of an employer, the amount repayable by the employer is to be similarly apportioned.(5) An amount repayable under this section may be recovered by the insurer as a debt in a court of competent jurisdiction.(6) The following policies of insurance are exempt from this section:(a) (Repealed)(b) policies of insurance in respect of domestic or similar workers,(c) policies of insurance of any class exempted from this section by the regulations.(7) (Repealed)(8) This section does not apply to:(a) a weekly compensation claim made in respect of a worker who receives an injury on a journey to which section 10 applies, or(b) a weekly compensation claim of any other class prescribed by the regulations for the purposes of this subsection.(9) Without limiting the operation of that provision, an insurance premiums order referred to in the definition of prescribed excess amount in subsection (1) may specify different amounts (or no amount) according to the period within which the employer gave notice of the injury concerned.
(cf former s 18A)
(1) The Authority or a person authorised by the Authority may, by notice in writing, require an employer to do either or both of the following:(a) to produce for inspection (or to supply specified particulars of) the policy of insurance obtained by the employer and in force at a specified date or between specified dates,(b) to supply such particulars of matters relating to the policy as the Authority or person may consider necessary.(2) A worker who has received an injury, or has met with an accident in circumstances giving rise to a claim for compensation under this Act, or a solicitor for the time being authorised by the worker to act on behalf of the worker in relation to the claim, or a representative of a union to which the worker belongs, may, by notice in writing, require the employer to make available for inspection a policy of insurance in force in respect of the worker at the time (whether before or after the commencement of this section) when the injury was received or the accident happened.(3) A person on whom a notice is served under subsection (1) or (2) shall comply with the notice:(a) within 21 days after service or such longer period as may be specified, or(b) if the Authority otherwise than in the notice allows a further period for compliance—within the further period.Maximum penalty: 50 penalty units.
(3A) A person is not liable to be prosecuted both for an offence under section 155 of failing to obtain and maintain in force a policy of insurance and for an offence under this section in respect of a failure to produce that policy of insurance for inspection.(4) An employer who obtains a policy of insurance shall retain the policy in his or her possession in good order and condition until:(a) there are no longer any workers in respect of whom the policy is in force, or(b) the policy is at least 7 years old,whichever occurs later.Maximum penalty: 50 penalty units.
(5) In this section:employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.
representative means an officer of an industrial organisation of employees for the time being authorised under Part 7 of Chapter 5 of the Industrial Relations Act 1996 to exercise powers under that section.
specified means specified in the notice concerned.
union means an industrial organisation of employees within the meaning of the Industrial Relations Act 1996.
(cf former s 49A)
(1) The Commission may, on application by a worker and if satisfied as to the matter sought to be declared, declare that an employer has entered into a contract with an insurer, named in the declaration, in respect of any liability under this Act to that worker and that the employer:(a) being a natural person, has died, or is permanently resident outside the Commonwealth of Australia and its Territories, or cannot after due inquiry and search be found,(b) being a corporation (other than a company which has commenced to be wound up), has ceased to exist,(c) being a company, corporation, society, association or other body (other than a company which has commenced to be wound up), was at the time when it commenced to employ the worker incorporated outside the Commonwealth of Australia and its Territories and registered as a foreign company under the laws of any State or Territory of the Commonwealth of Australia and is not at the time of the declaration so registered under any such law, or(d) being a company, has commenced to be wound up after entering into the contract with the insurer.(2) Where the Commission makes a declaration under subsection (1), the Commission may make an award of compensation for an injury to the worker (being, in the case referred to in subsection (1) (d), an injury that took place before the commencement of the winding up of the employer) and such an award shall, for the purposes of section 159, be deemed to be an award against an employer of the worker with whom the insurer referred to in the declaration entered into a contract with respect to any liability under this Act to that worker.
163 Register to be kept by insurers
(cf former s 18A (2A)–(2C))
(1) A licensed insurer shall keep a register of all policies of insurance issued or renewed by the insurer containing the following particulars in respect of each policy:(a) the name and address of the policy holder,(b) the number of the policy,(c) any premium rate classification under an insurance premiums order,(d) the date of issue or renewal of the policy,(e) such other particulars as may be prescribed by the regulations.(2) A person who ceases to be a licensed insurer shall deliver the register to the Nominal Insurer.(3) An insurer shall retain in good order and condition for at least 7 years all the insurer’s records that relate to the issue, renewal or discontinuance of policies of insurance and the receipt, administration and payment of claims under this Act.(4) In subsection (3):insurer means licensed insurer, former licensed insurer or self-insurer.
Maximum penalty: 1,000 penalty units.
(1) In this section:certificate of currency means a certificate issued to an employer by the insurer under a policy of insurance obtained by the employer that certifies the period (not exceeding 4 months or such other period as may be prescribed by the regulations) from the date of its issue during which the employer is insured under the policy, being a certificate that:
(a) is in the form (if any) approved by the Authority, and(b) states the nature of the business and the number of workers of the employer, and the amount of the wages estimated to be payable by the employer, in respect of which the premium for the policy was determined by the insurer, and(c) states such other matters as the Authority may direct from time to time by notice in writing to insurers.(2) An employer who is required to obtain a policy of insurance must, within 5 days of a request to do so by a person authorised under this section to make the request, produce a certificate of currency for inspection by the person that certifies that the employer is insured under the policy at that time.Maximum penalty: 50 penalty units.
(3) The following persons are authorised to request an employer to produce the employer’s certificate of currency:(a) an authorised officer (within the meaning of section 238 of the 1998 Act) or any other officer of the Authority authorised by the Authority to make such a request,(b) an authorised industrial officer (within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996),(c) any person who has, in the course of or for the purposes of the person’s trade or business, contracted with the employer for the employer to carry out the whole or part of any work that the person has undertaken, or who proposes to enter into such a contract.Note. Section 20 makes a principal liable to pay compensation for injured workers of a contractor if the contractor has not taken out a policy of insurance.(4) The insurer under a current policy of insurance must, at the request of the employer insured under the policy, issue to the employer a certificate of currency with respect to the policy free of charge. The insurer may refuse to issue the certificate if the premium (or instalment of premium) for the policy is due and payable pursuant to a written demand for payment and has not been paid, or the employer is otherwise in default under the policy.(5) A person who is insured under a policy of insurance at the time a request is made under subsection (2) for the production of a certificate of currency does not commit an offence against that subsection if the person satisfies the court that an attempt to obtain a certificate within 5 days of the request for production was not successful.(6) A person who fraudulently alters a certificate of currency issued under this section is guilty of an offence.Maximum penalty: 50 penalty units.
(7) An employer to whom a certificate of currency is issued under this section must notify the insurer within 7 days after the certificate is issued if the certificate contains an error as to the nature of the business, or the number of workers of the employer, in respect of which the premium for the policy was determined by the insurer.Maximum penalty: 50 penalty units.
(8) The regulations may make provision for or with respect to:(a) requiring the supply by an employer to an insurer of information relevant to the issue of a certificate of currency to the employer (including information relevant to the calculation of premium), and(b) providing that an insurer is not required to issue a certificate of currency to an employer who has failed to supply information to the insurer as required by the regulations.(9) A certificate of currency issued under this section is evidence of the matters that it certifies.
163B Issue of stop work order to uninsured employer
(1) The Authority or an authorised officer may issue a stop work order in writing to an employer (other than an employer who is a self-insurer) if the Authority or authorised officer reasonably suspects that the employer does not have a policy of insurance that complies with this Division.(2) A stop work order takes effect at the beginning of the fifth working day after the day on which it is given to the employer and may be withdrawn at any time by the Authority or an authorised officer.(3) A stop work order is to be withdrawn by the Authority or an authorised officer as soon as practicable after the employer to whom the order has been issued produces a certificate of currency in accordance with section 163A.(4) After a stop work order takes effect, the employer to whom it has been issued must (until the order is withdrawn) ensure that no work is performed for the employer by any worker of the employer.Maximum penalty: 500 penalty units or imprisonment for 6 months, or both.
(5) In this section:authorised officer has the same meaning as in section 238 of the 1998 Act.
164 Employer—offences relating to policies of insurance
(cf former cl 2 of General Regulations)
An employer shall not:(a) supply any information to a licensed insurer which the employer knows is false or misleading in a material particular with the object of procuring the issue or renewal of a policy of insurance, or(b) wilfully fail to observe any of the terms of a policy of insurance obtained by the employer.Maximum penalty: 100 penalty units.
(cf former s 30AB)
(1) The Governor may, by an order made on the recommendation of the Authority and published in the Gazette, fix the manner in which the premium payable by an employer (or a person who proposes to become an employer) for a policy of insurance shall be calculated, whether by reference only to annual rates or otherwise.Editorial note. For orders under this subsection see the Historical notes at the end of this Act.(2) An insurance premiums order shall:(a) take effect on and from the date of its publication in the Gazette or a later date specified in the order, and(b) apply to and in respect of policies of insurance which are to be or have been issued or renewed so as to take effect while the order is in force.(3) An insurance premiums 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, or(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,or may do any combination of those things.(3A) Without limiting the generality of subsection (3), an insurance premiums order may provide for the payment of increased premiums by employers who (under any specified or class of contract of employment, industrial agreement, award or other arrangement) are or may become liable to make payments to workers or their dependants in respect of injuries or deaths (including payments as a supplement or an alternative to the periodic or lump sum payments of compensation under this Act).(4) The following policies of insurance are exempt from insurance premiums orders:(a), (b) (Repealed)(c) policies of insurance of any class exempted by the regulations from orders under this section.(5) (Repealed)
168A Optional alternative method of calculating premium for large employers
(1) An insurance premiums order may fix (as an optional alternative method) an alternative method for calculating the premium payable for a policy of insurance by an employer who is classified under the order as a large employer (or a person who proposes to become such an employer).(2) An optional alternative method for calculating premium applies to an employer only if:(a) the employer satisfies any criteria established by the insurance premiums order for eligibility for the optional alternative method, and(b) the Nominal Insurer has, on the application of the employer, approved of the optional alternative method applying to the employer for the time being.(3) The Nominal Insurer may revoke an approval under this section at any time.(4) If an optional alternative method applies to an employer, that method applies for the purpose of calculating the relevant premium payable by the employer instead of any method that would otherwise apply to the employer under the insurance premiums order.
169 Premiums to be calculated in accordance with insurance premiums order
(cf former s 30AC)
(1) The premium payable by an employer (or a person who proposes to become an employer) for a policy of insurance to which an insurance premiums order applies shall be calculated in the manner fixed by the order.(2) An insurer breaches an insurance premiums order if the insurer demands or receives:(a) for the issue of a policy of insurance to which the order applies, or(b) for the renewal of any such policy,an amount which is, or amounts the sum of which is, different from a premium which is payable in accordance with subsection (1) by the employer (or the person who proposes to become an employer) to whom the policy relates.(3) An insurer who wilfully breaches an insurance premiums order is guilty of an offence and liable to a penalty not exceeding 1,000 penalty units.
170 Action by employer where premium not in accordance with insurance premiums order
(cf former s 18AA)
(1) An employer from whom an insurer has demanded a premium for the issue or renewal of a policy of insurance may dispute an aspect of the insurer’s determination of that premium on the basis that it is not in accordance with the relevant insurance premiums order. The employer may apply to the Authority for a review by the Authority of that aspect (the disputed aspect) of the insurer’s determination.(2) Any such application must be made within 1 month after the date of the demand for the premium concerned, or within such further period as the Authority may, in special circumstances, approve in relation to the application.(3) When any such application is made, the Authority:(a) shall notify the insurer of the making of the application,(b) shall consider the application and may have regard to such oral or written evidence or representations as it thinks fit,(c) must dismiss the application if the Authority decides that:(i) the policy is not a policy to which a relevant insurance premiums order applies, or(ii) the disputed aspect was determined by the insurer in accordance with the relevant insurance premiums order,or must in any other case determine the disputed aspect in accordance with the relevant insurance premiums order, and(d) shall, in such manner as it thinks fit, inform the employer and the insurer of its dismissal of the application or its determination, as the case may require.(3A) The Authority’s determination of the disputed aspect is to be made as a review of the insurer’s determination and accordingly is to be made as if it were the determination required to be made by the insurer at the time of the determination of the premium concerned.(3B) When the Authority makes a determination on a review under this section, the insurer must redetermine the relevant premium in accordance with the Authority’s determination.(4) Where:(a) the insurer redetermines a premium following the Authority’s determination, and(b) the employer has already paid to the insurer the premium to which the application relates,the employer may recover from the insurer, in a court of competent jurisdiction as a debt due to the employer, so much of the premium paid as exceeds the premium as redetermined, together with interest on the amount of premium recoverable calculated at the prescribed rate.(5) Where:(a) the Authority makes a determination,(b) the insurer does not within 1 month after the date of the determination of the Authority:(i) in the case of the issue of a policy of insurance—issue to the employer a policy of insurance having effect for such period (not exceeding 1 year) and from such date as the Authority determines, or(ii) in the case of the renewal of a policy of insurance—effect the renewal of the policy for such period (not exceeding 1 year) as the Authority determines from the date of expiry referred to in subsection (2) (b),at such premium as would result from a redetermination by the insurer of the premium in accordance with the Authority’s determination, and(c) the employer does not otherwise agree or request,the insurer shall be deemed to have issued to the employer a policy of insurance at that premium and having effect for the period and from the date referred to in paragraph (b) (i) or (ii).(6) The insurer shall forthwith supply to the employer a document setting out the provisions of a policy of insurance deemed by subsection (5) to be issued to the employer.Maximum penalty: 20 penalty units.
(7) In this section, a reference to an employer includes a reference to a person who proposes to become an employer.(8) In this section:prescribed rate means:
(a) the rate prescribed by the regulations, or(b) if no rate is prescribed by the regulations—a rate specified by the relevant insurance premiums order in relation to the premium paid by the employer, or(c) if no rate is prescribed by the regulations or specified in an insurance premiums order—the rate of 1.2% per month compounded monthly.relevant insurance premiums order, in relation to a premium paid by an employer, means the insurance premiums order that applies to the policy of insurance that gave rise to the payment.
(9) (Repealed)
171 Payment of premiums by instalments
(cf former s 18 (7B))
If the regulations so provide, an employer may elect to pay the premiums under a policy of insurance by instalments, at such times and of such amounts as may be prescribed by the regulations.
172 Recovery of unpaid premiums
(cf former s 18 (7C))
(1) Where:(a) an employer has not elected under section 171 to pay a premium by instalments and fails to pay the full amount of the premium within 1 month after service on the employer of a notice that payment of the premium is due,(b) an employer who has elected under section 171 to pay a premium by instalments fails to pay an instalment by the due date, or(c) an employer has failed to pay an adjustment of premium within 1 month after service on the employer of a notice that payment of the amount of the adjustment is due,the full amount of the premium (in the case referred to in paragraph (a)), the balance of the premium unpaid or, where no instalment has been paid, the full amount of the premium (in the case referred to in paragraph (b)) or the amount of the adjustment (in the case referred to in paragraph (c)) together with a late payment fee calculated at the prescribed rate may be recovered as a debt in a court of competent jurisdiction.(2) The payment of a late payment fee under this section may be waived by the insurer concerned, but only with the approval of the Authority.(3) In proceedings under this section for the recovery of any unpaid premium with a late payment fee, the court may, if satisfied that a notice for payment was delayed because of delay of the employer in providing returns to the insurer, for the purpose of assessing the premiums, treat the notice as having been served on an earlier date.(4) The making of an application to the Authority under section 170 (determination of premium to be charged) does not affect the entitlement of an insurer under this section to recover the premium (or part of premium) concerned except to the extent that:(a) the Authority otherwise directs in a particular case, or(b) the regulations otherwise provide.(5) In this section:prescribed rate means:
(a) the rate prescribed by the regulations, or(b) if no rate is prescribed by the regulations—a rate specified by the relevant insurance premiums order in relation to the amount or balance outstanding, or(c) if no rate is prescribed by the regulations or specified in an insurance premiums order—the rate of 1.2% of the relevant amount or balance per month compounded monthly.relevant insurance premiums order, in relation to an amount or balance outstanding, means the insurance premiums order that applies to the policy of insurance that gave rise to the obligation to pay the outstanding amount or balance.
172A Security deposit or guarantee for payment of premium—optional alternative premium calculation method
(1) The Nominal Insurer may require an employer who is or was insured under a policy of insurance the premium for which was determined by an optional alternative method (as referred to in section 168A) to have on deposit with the Nominal Insurer the employer’s required deposit in respect of the policy, and the employer must:(a) deposit with the Nominal Insurer such amount as the Nominal Insurer determines and notifies the employer to be the employer’s required deposit in respect of the policy of insurance concerned, and(b) deposit with the Nominal Insurer, at such time or times as the Nominal Insurer may direct by notice to the employer, such additional amount or amounts as the Nominal Insurer determines to be necessary to ensure that the amount the employer has on deposit under this section is the employer’s required deposit for the time being.Maximum penalty: 100 penalty units.
(2) The Nominal Insurer is to hold money on deposit under this section on trust for the payment and satisfaction of the employer’s liability to pay any premium (including any adjustment of premium) payable in respect of the policy of insurance to which the money held on deposit relates.(3) An amount of money deposited with the Nominal Insurer under this section is not liable to be attached or levied on or made subject to any debts of or claims against the employer making the deposit, except as provided by subsection (2).(4) The Nominal Insurer may at any time refund to an employer who has money on deposit under this section any amount by which the employer’s deposit exceeds the employer’s required deposit for the time being.(5) An employer must comply with any written direction of the Nominal Insurer to provide the Nominal Insurer with specified information (including actuarial information) for the purpose of enabling the Nominal Insurer to determine the employer’s required deposit in respect of a policy of insurance from time to time.Maximum penalty: 50 penalty units.
(6) Sections 214–215B apply to and in respect of an amount of money deposited or required to be deposited with the Nominal Insurer under this section as if:(a) the amount deposited or required were deposited or required pursuant to an obligation imposed under Division 5 (Self-insurers), and(b) the employer were a self-insurer while the employer holds a policy of insurance in respect of which the amount is held or required to be held on deposit, and(c) a reference in those provisions to the Authority were a reference to the Nominal Insurer.(7) An employer who has deposited an amount of money with the Nominal Insurer under this section is entitled to a refund of the amount so deposited and standing to the employer’s credit with the Nominal Insurer:(a) on the expiration of 3 months after service on the Nominal Insurer of a written request for the refund, and(b) on satisfying the Nominal Insurer that the employer’s liability referred to in subsection (2) has been discharged or adequately provided for.(8) In this section:employer includes a former employer.
required deposit in respect of a policy of insurance means the amount fixed by or determined in accordance with the relevant insurance premiums order as the required deposit for the policy.
173 Furnishing information for calculation of premiums
(cf former ss 18 (7), (7A), 66 (1A) (a)–(c))
(1) The regulations may make provision for or with respect to:(a) requiring the supply of information relevant to the calculation of the premiums payable under policies of insurance (whether to be supplied before or after the issue or renewal of any such policy), and(b) requiring any such information to be verified by statutory declaration or be accompanied by a certificate from a registered tax agent, a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth) or any other person.(2) Regulations under this section may require information to be supplied to or by employers, licensed insurers or former licensed insurers.
173A Giving false information for premium calculation
A person must not, when supplying information to an insurer relevant to the calculation of the premium payable under a policy of insurance issued or renewed or to be issued or renewed by the insurer (whether or not the information is supplied pursuant to a requirement of this Act or the regulations) supply information that the person knows is false or misleading in a material particular.Maximum penalty: 50 penalty units.
173B Redetermination of premium and payment of interest
(1) The regulations may make provision for or with respect to the following:(a) the adjustment of the premium (the original premium) payable for the issue or renewal of a policy of insurance, on the basis of a change in relevant wage details,(b) requiring the provision of updated information by employers for the purpose of effecting any such adjustment,(c) requiring the payment of any amount that becomes due as a result of any such adjustment of premium,(d) requiring the payment of interest on any such amount (including providing for interest to be payable from the time of payment of the original premium or an instalment of the original premium).(2) In this section, relevant wage details means the information as to wages payable or paid to workers on the basis of which the amount of the premium payable for the issue or renewal of a policy of insurance is determined.Note. A change in relevant wage details occurs when:(a) an employer changes the employer’s estimate of the wages that will be payable to workers during a period, or(b) the wages actually paid to workers during a period is different to the amount of wages estimated to be payable during that period.
174 Records relating to wages, contracts etc to be kept and supplied
(cf former ss 18 (8) (a)–(c), 44 (5))
(1) An employer shall keep correct records of:(a) all wages paid to workers employed by the employer,(b) the trade, occupation or calling of each such worker, and(c) such other matters relating to those wages (or otherwise relevant to the calculation of premiums payable under policies of insurance) as may be prescribed by the regulations.(2) An employer shall retain any such record in good order and condition for at least 5 years after the last entry was made in the record.(3) If the regulations so provide, any such record shall be kept in such manner as may be specified in the regulations.(4) Any such record may be combined with any record of wages required to be kept by an employer by or under any other Act. However, it is not to be combined in such a manner as would prevent its disclosure under any law.(5) The Authority may order an employer to do either or both of the following:(a) to supply to the Authority, within the time specified in the order, a full and correct statement of the information required to be recorded by the employer under subsection (1) during a period so specified (being a period during which the record is required to be kept under this section), or(b) to make available, at such time and at such place as is specified in the order, for inspection by a specified person authorised by the Authority, the records required to be kept by the employer under this section during a period so specified (being a period during which the record is required to be kept under this section), or(c) to make available, at such time and at such place as is specified in the order, for inspection by a specified person authorised by the Authority, records of a specified kind in the possession of the employer that are relevant to the calculation of premiums payable under policies of insurance or to the determination of whether the employer or another employer is required to obtain a policy of insurance or has paid the correct premium for a policy of insurance.(5A) The Authority may provide information supplied to the Authority by an employer under subsection (5) (a) to any insurer for the purpose of assisting the insurer to determine whether the correct premium has been paid under a policy of insurance issued by the insurer.(6) The Authority may, by an order under subsection (5), require information to be supplied to, or made available for inspection by, an insurer who has issued a policy of insurance to the employer and who requests the Authority to make the order for the purpose of determining whether the correct premium has been paid under the policy.(6A) The Authority may order that a person make available, at a time and place specified in the order, for inspection by a person authorised by the Authority or (at the request of the insurer) by an insurer, any records in the person’s possession relating to any contract (however described) under which the person has made payments to any other person (whether or not an individual) for the performance of work by that other person during such period (subject to subsection (6AA), not exceeding 3 years after the work was performed) as is specified in the order. The order need not name or otherwise identify the person to whom those payments have been made.(6AA) However, if the Authority is of the opinion that there has been a serious failure to comply with the requirements of this Act by the person to whom the order is to be given, the period specified in the order (or a further order) may be a period not exceeding 5 years after the work concerned was performed.(6B) An order under subsection (6A) may be made only for the purpose of establishing whether a person is required to obtain a policy of insurance under this Act or for the purpose of determining whether the correct premium has been paid under a policy of insurance.(7) A person authorised under subsection (5) (b), (5) (c), (6) or (6A) may inspect the records in accordance with the terms of the order and make copies of, or take extracts from, those records.(8) A person on whom an order is served under this section:(a) must comply with the order, and(b) must not wilfully obstruct or delay an authorised person when exercising any power under subsection (7).(9) In this section:insurer means a licensed insurer or a former licensed insurer.
wages, in relation to a worker:
(a) includes salary, overtime, shift and other allowances, over-award payments, bonuses, commissions, payments to working directors (including payments as directors’ fees), payments for public and annual holidays (including loadings), payments for sick leave, value of board and lodging provided by the employer for the worker and any other consideration in money or money’s worth given to the worker under a contract of service or a training contract,(b) includes payment (whether by way of commission, fee, reward or otherwise) under a contract (whether referred to as a contract, agreement, arrangement or engagement) by reason of which the person paid is deemed by Schedule 1 to the 1998 Act to be a worker, after deducting such amount for costs necessarily incurred by that person in performing that contract as may be agreed on or, in default of agreement, as may be determined by the Authority, and(b1) includes payments for long service leave (including a lump sum payment instead of long service leave and any payment under the Building and Construction Industry Long Service Payments Act 1986 or the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010), and(b2) includes a payment made in consequence of the retirement from, or termination of, any office or employment of a worker, being:(i) a lump sum payment paid before or after that retirement or termination in respect of unused annual leave, or unused annual leave and a bonus, loading or other additional payment relating to that leave, or(ii) an amount paid in respect of unused long service leave, or(iii) an amount paid in respect of unused sick leave, and(b3) includes the amount that is the employer’s fringe benefits taxable amount (within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth) in respect of fringe benefits payable to the worker, and(b4) includes a superannuation benefit, being money paid or payable by the employer in respect of the worker:(i) to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, or(ii) as a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, or(iii) to or as any other form of superannuation, provident or retirement fund or scheme, including a wholly or partly unfunded fund or scheme, and(b5) includes a distribution to a worker as beneficiary under a trust that is required to be included as wages by section 174AA, and(c) does not include:(i)–(iii) (Repealed)(iv) directors’ fees (except to the extent that those fees are payable to working directors and included as wages under paragraph (a)), or(v) compensation under this Act, or(vi) (Repealed)(vii) any GST component in a payment to a worker.Maximum penalty: 500 penalty units.
174AA Inclusion of trust distributions as wages
(1) A distribution to a worker as beneficiary under a trust constitutes wages for the purposes of section 174 to the extent that the distribution is in lieu of wages for work done for the trust by the worker.(2) Work that constitutes the provision of services to the trustee of a trust or for the purposes of a business conducted by the trustee of a trust is work done for the trust.(3) This section applies in respect of distribution to a worker only if:(a) there is a wages shortfall in respect of work done for the trust by the worker, and(b) the distribution is made in the financial year in which the work is done or in the following financial year.(4) There is a wages shortfall in respect of work done for the trust by the worker if the total wages (if any) paid or payable to the worker during the financial year in which the work is done is less than the wages that would be payable to the worker for that work if wages were payable at the market rate for that work (with the difference constituting the wages shortfall for the purposes of subsection (5)).(5) If the distribution does not exceed the wages shortfall in respect of the work, the whole of the distribution is in lieu of wages for work done for the trust by the worker. Alternatively, if the distribution exceeds the wages shortfall in respect of the work, the distribution is in lieu of wages to the extent of the shortfall.(6) For the purpose of determining whether a particular distribution is in lieu of wages for work done for the trust, the total wages (if any) paid or payable to the worker during a financial year for the work is taken to include any previous distribution (whether made during that financial year or the following financial year) that, by application of this section, is a distribution in lieu of wages for the same work.(7) The market rate for work is the minimum wage rate applicable in respect of the work (or work that is comparable to the work):(a) pursuant to an industrial instrument in force under a law of the State, or(b) if paragraph (a) does not apply, pursuant to an industrial instrument in force under a law of the Commonwealth, or(c) if neither paragraph (a) nor (b) applies, as provided by the WorkCover Guidelines or as determined and notified by the Authority in the particular case.
174A Recovery of inspection costs of Authority or insurer
(1) When an inspection by an insurer or a person authorised by the Authority reveals a significant understatement of wages by an employer or that an employer has failed to obtain or maintain in force a policy of insurance as required by section 155 (1), the insurer or Authority is entitled to recover from the employer the costs incurred by the Authority or insurer in connection with that inspection.(2) An inspection is considered to reveal a significant understatement of wages by an employer if the inspection reveals that the employer has, in connection with the calculation of the premium or balance of premium payable for the issue or renewal of a policy of insurance, understated by 25% or more the wages paid to workers employed by the employer.(3) The amount that the Authority or insurer is entitled to recover is recoverable in a court of competent jurisdiction as a debt due to the Authority or insurer.(4) A certificate issued by the Authority certifying as to the costs incurred by the Authority or an insurer in connection with such an inspection is evidence of the matters certified.(5) This section does not apply in respect of inspections carried out made before the commencement of this section.(6) In this section:inspection means an inspection or audit of an employer’s records carried out under a provision of this Act or the regulations or of a policy of insurance.
175 Employers evading payment of correct premiums
(cf former s 18 (8) (d)–(h))
(1) If the Authority finds, having regard to information obtained under section 174 or otherwise, an amount to be due and payable by an employer to an insurer as a premium or balance of premium in respect of the issue or renewal of a policy of insurance (whether or not the policy is still in force), the Authority may order the employer to pay that amount to the insurer.(2) A late payment fee at the rate for the time being in force under section 172 is payable in respect of an amount ordered to be paid under subsection (1) as from the date determined by the Authority as the date the premium for the issue or renewal of the policy of insurance concerned first became due and payable to the insurer.(3) An amount ordered to be paid under subsection (1), together with any late payment fee payable under subsection (2), may be recovered as a debt in a court of competent jurisdiction by the insurer in whose favour the order was made.(4) If the Authority finds that:(a) an employer has provided an insurer with information which was false or misleading in a material particular, and(b) the insurer, relying on that information, has calculated a premium for the issue or renewal of a policy of insurance which is less by a certain amount than the premium would otherwise have been,the Authority may recover from the employer in a court of competent jurisdiction as a debt due to the Authority, a sum equal to twice that amount plus the late payment fee provided for by subsection (4A), half of which sum shall be paid by the Authority to the insurer and the other half into the WorkCover Authority Fund.(4AA) If the Authority finds that:(a) an employer has contravened section 175G (Members of group to have policies with same scheme agent and common renewal date) as a result of the issue or renewal of a policy of insurance, and(b) the total premium payable for those policies is less by a certain amount than the total premium that would have been payable had that section been complied with,the Authority may recover from the employer in a court of competent jurisdiction as a debt due to the Authority a sum equal to twice that amount plus the late payment fee provided for by subsection (4A). Half of that sum is to be paid by the Authority to the insurer and the other half into the WorkCover Authority Fund.(4AB) For the purposes of the application of the Limitation Act 1969 to an action on a cause of action to recover an amount under subsection (4) or (4AA), the cause of action first accrues to the Authority when the Authority makes the finding referred to in those subsections.(4A) The late payment fee at the rate for the time being in force under section 172 is payable:(a) under subsection (4) as from the date the premium for the issue or renewal of the policy of insurance concerned first became due and payable to the insurer, or(b) under subsection (4AA) as from the date the premium for the issue or renewal of the policy referred to in subsection (4AA) (a) first became due and payable to the insurer.(4B) The Authority may waive or reduce a late payment fee payable under this section.(5) A certificate executed by the Authority and certifying that an amount specified in the certificate is payable under subsection (1), (2) or (4) by a person so specified is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the matters specified in the certificate.(6) In the absence of information that would enable the Authority to accurately determine the premium that would have been payable for the issue or renewal of a particular policy of insurance, the following provisions have effect:(a) the Authority is entitled to make an estimate of that premium (based on the information available to the Authority),(b) the Authority’s estimate is presumed to be accurate as to the premium that would have been payable and cannot be challenged on the basis that insufficient information was available to enable the making of an accurate assessment, but can be challenged by the provision of information that enables a more accurate estimate to be made,(c) if the Authority’s estimate is successfully challenged and as a result a more accurate estimate is substituted, the proceedings are not open to challenge merely because of the inaccurate estimate and may continue to be heard and be determined on the basis of the substituted assessment.(7) A court that convicts an employer of an offence under section 173A (Giving false information for premium calculation) may, on the application of the Authority, order the employer to pay to the Authority the amount that the court is satisfied the Authority is entitled to recover from the employer under this section in respect of the matter to which the offence relates. For the purposes of this subsection, a court that makes a finding that an employer is guilty of an offence under section 173A without proceeding to a conviction is taken to have convicted the employer of the offence.(7A) Any amount paid by an employer under such an order is taken to have been recovered from the employer under subsection (1) and is to be dealt with accordingly.(7B) The Local Court cannot order the payment of an amount under subsection (7) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.(8) In this section:insurer means a licensed insurer or a former licensed insurer.
175A Recovery from directors of corporation evading payment of correct premium
(1) If the Authority is entitled to recover an amount from a corporation under section 175 (4) or (4AA) (even if the corporation has ceased to exist) and the amount is not recoverable from the corporation, the Authority is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time.(2) An amount is considered to be not recoverable from a corporation if the Authority certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.(3) A person is a culpable director of a corporation at the relevant time if the person was a director of the corporation at the time that the false or misleading information to which the entitlement of the Authority relates was provided to the insurer concerned (whether or not the corporation has been proceeded against or convicted of an offence in respect of the provision of that information).(4) A person is not a culpable director of a corporation if the person establishes that:(a) the person did not know that the information provided by the corporation was false or misleading in a material particular, or(b) the person was not in a position to influence the conduct of the corporation in relation to the provision of false or misleading information, or(c) the person, being in such a position, used all due diligence to prevent the provision by the corporation of false or misleading information.(5) If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.(6) A director from whom an amount is recovered under this section is entitled to recover the amount from the corporation.(7) This section does not apply to an entitlement of the Authority that arises from the provision of false or misleading information by a corporation before the commencement of this section.
175B Liability of principal contractor for unpaid premiums payable by subcontractor
(1) This section applies where:(a) a person (the principal contractor) has entered into a contract for the carrying out of work by another person (the subcontractor), and(b) employees of that subcontractor are engaged in carrying out the work (the relevant employees), and(c) the work is carried out in connection with a business undertaking of the principal contractor and is work that is an aspect of the work of that business undertaking.(2) The principal contractor is liable for the payment of any workers compensation insurance premiums payable by the subcontractor in respect of the work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this section for that period of the contract.(3) In this section:workers compensation insurance premiums means:
(a) if the subcontractor has failed to obtain or maintain in force a policy of insurance as required by section 155 (1) in respect of the work done in connection with the contract during any period of the contract—the amount recoverable under section 156 (1) (Recovery of double premiums from employer not obtaining policy of insurance) in connection with that failure, or(b) if an amount is due and payable by the subcontractor to an insurer as a premium or balance of premium for the issue or renewal of a policy of insurance in respect of the work done in connection with the contract during any period of the contract—that amount, together with any late payment fee payable in respect of that amount under section 175 (2).(4) The written statement is a statement comprising the following:(a) a statement by the subcontractor that all workers compensation insurance premiums payable by the subcontractor in respect of the work done in connection with the contract during any period of the contract have been paid, accompanied by a copy of any relevant certificate of currency in respect of that insurance,(b) a statement by the subcontractor as to whether the subcontractor is also a principal contractor in connection with that work,(c) if the subcontractor is also a principal contractor in connection with that work, a statement by the subcontractor as to whether the subcontractor has been given a written statement under this section in the capacity of principal contractor in connection with that work.(5) The regulations may make provision for or with respect to the form of the written statement.(6) The principal contractor must keep a copy of any written statement under this section for at least 7 years after it was given.(7) The principal contractor may withhold any payment due to the subcontractor under the contract until the subcontractor gives a written statement under this section for any period up to the date of the statement. Any penalty for late payment under the contract does not apply to any payment withheld under this subsection.(8) The written statement is not effective to relieve the principal contractor of liability under this section if the principal contractor had, when given the statement, reason to believe it was false.(9) A subcontractor who gives the principal contractor a written statement knowing it to be false is guilty of an offence.Maximum penalty: 100 penalty units.
(10) Any amount payable by a principal contractor under this section is recoverable as a debt in a court of competent jurisdiction by the person to whom the amount would, as workers compensation insurance premiums, be payable by the subcontractor.(11) The principal contractor is entitled to recover from the subcontractor as a debt in a court of competent jurisdiction any payment made by the principal contractor under this section.(12) This section does not apply in relation to a contract if the subcontractor is in receivership or in the course of being wound up or, in the case of an individual, is bankrupt and if payments made under the contract are made to the receiver, liquidator or trustee in bankruptcy.(13) This section does not apply in respect of a contract entered into by the principal contractor for the carrying out of work at the principal place of residence of the principal contractor.(14) The regulations may exempt from the operation of this section any contract, work, principal contractor or subcontractor of a class or description specified in the regulations.
175C Authority may make private rulings regarding workers at the request of employers
(1) The Authority may, on application, make a private ruling, based on information submitted to it by the applicant, as to whether any particular person is a worker, or any particular class of persons are workers, employed by the applicant for workers compensation insurance premiums purposes.(2) A private ruling is to be used in the calculation of a relevant insurance premium by the insurer concerned, unless:(a) there has been a material change in the information submitted to the Authority relating to the ruling, or(b) the ruling has been withdrawn.(3) A private ruling may be used by the person on whose application it was made as evidence as to whether any person is a worker, or any class of persons are workers, employed by the applicant, but only if there is no material change in the information submitted to the Authority relating to the application.(4) Other than in proceedings under section 155 or other proceedings relating to payment of insurance premiums required by this Act, a private ruling is inadmissible in proceedings in which the status of a person as a worker is at issue.(5) A private ruling has no effect on any determination by any person or body as to whether a person is a worker entitled to compensation under this Act.(6) The regulations may make provision for or with respect to private rulings.(7) Without limiting subsection (6), the regulations may deal with:(a) applications for private rulings (including the information to be provided with applications), and(b) making of private rulings, and(c) objections, reviews and appeals against private rulings, and(d) amendment or withdrawal of private rulings by the Authority.
Division 2A Grouping of employers for insurance purposes
(1) In this Division:group means a group constituted under Division 2B, but does not include any member of the group in respect of whom a determination under section 175E is in force.
(2) This Division does not apply to the following:(a) an employer who is a self-insurer,(b) the persons, groups of persons and bodies constituted as a primary group by virtue of section 175Q (being government departments),(c) the members of a group where the total wages payable to workers employed by the members of the group do not exceed:(i) $600,000 per year, or(ii) if some other amount is prescribed by the regulations—that other amount.(3) The regulations may make provision for or with respect to excluding, or authorising the Authority to exclude, any class or classes of employers from the operation of this Division or specified provisions of this Division.
175E Exclusion of employers from groups
(1) The Authority may, by order in writing, determine that an employer who would, but for the determination, be a member of a group is not a member of the group.Note. Section 175F sets out the circumstances in which a determination may be made under this section.(2) The Authority must give notice in writing of a determination to the employer in respect of whom the determination is made and to each member of the group.(3) A determination takes effect:(a) on the date on which notice under subsection (2) is given to the employer excluded from the group, or(b) if another date of effect (including an earlier date) is specified in the notice—on that other date.(4) A determination continues in force until it is revoked.(5) The Authority may revoke a determination only if satisfied that the employer to which it relates no longer is an employer to which section 175F applies.(6) Notice of the revocation of a determination must be given by the Authority:(a) to the employer in respect of whom the determination was made, and(b) to each other member of the group of which the employer is a member as a result of the revocation.(7) A revocation of a determination takes effect on the date on which notice under subsection (6) (a) is given to the employer in respect of whom the determination was made.(8) If an employer in respect of whom a determination under this section was made becomes aware that the employer no longer is one to which section 175F applies, the employer must, within 14 days, notify the Authority of that fact.Maximum penalty (subsection (8)): 500 penalty units.
175F Grounds for excluding employers from group
(1) A determination may be made by the Authority under section 175E in respect of the following employers only:(a) an employer who would, but for the determination, be a member of a group arising under section 175N (Primary groups arising from the use of common employees),(b) an employer that carries on a business as trustee of a trust and would, but for the determination, be a member of a group arising under section 175O (Primary groups of commonly controlled businesses),(c) an employer that is a non-profit organisation having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose, but only if the employer’s business is not in direct competition with any for-profit organisation.(2) In the case of an employer referred to in subsection (1) (b), the determination may be made only if the Authority is satisfied that the employer would, but for the determination, be a member of a group with a person who carries on another business because of the application of one (but not more than one) of the following grouping principles:(a) the exclusive ownership grouping principle (section 175O (2) (a) and (b)),(b) the corporate grouping principle (section 175O (2) (c) and (d) and (3)),(c) the common beneficiary grouping principle (section 175O (2) (e) and (f) and (5)–(8)).(3) The Authority must not make a determination under section 175E in respect of an employer referred to in subsection (1) (a) or (b) unless satisfied that the employer that is the subject of the determination has continuously carried on the business concerned, and will continue to carry on that business, substantially independently of the other member or members of the group.(4) In determining whether an employer carries on business substantially independently of the other member or members of a group, the Authority is to have regard to the nature and degree of ownership or control of the business of each member of the group, the nature of each of those businesses and any other matter that the Authority considers relevant.
175G Members of group to have policies with same scheme agent and common renewal date
(1) The policy of insurance that an employer who is a member of a group obtains and maintains in force for the purposes of compliance with section 155 (a workers compensation insurance policy) must:(a) be obtained from or through the same scheme agent that provides workers compensation insurance policies to the other members of the group, and(b) have the same renewal date as those other policies.(2) An employer who contravenes subsection (1) is guilty of an offence.Maximum penalty: 500 penalty units.
(3) If an employer who is a member of a group does not obtain or maintain in force a policy of insurance in compliance with this section, the Authority may by notice in writing to a scheme agent:(a) direct the transfer of any policy of insurance obtained or maintained in contravention of this section to a specified scheme agent (being the scheme agent from or through whom workers compensation insurance is provided to other members of the group concerned), and(b) direct the alteration of the policy of insurance so that the policy renews on the same date as the policies of other members of the group.(4) A scheme agent must give effect to a direction given to it under this section.
175H Joint and several liability of group members
(1) If an employer who is a member of a group fails to pay an amount that the employer is required to pay under this Part (including any premium payable for a policy of insurance required under this Part and any sum recoverable by the Authority under this Part from the employer), every member of the group is liable jointly and severally to pay the amount.(2) If 2 or more persons are jointly or severally liable to pay an amount as referred to in this section, the person entitled to payment may recover the whole of the amount from them, or any of them, or any one of them.(3) A person who pays an amount in accordance with the liability imposed by this section has such rights of contribution or indemnity from the other person or persons as are just.
(1) The Authority is to keep a register of employers who are members of a group.(2) An employer must notify the Authority if the employer becomes a member of a group to which this Division applies.(3) The notification is to be made within 14 days of the employer becoming aware, or of the date the employer ought reasonably to have become aware through the exercise of due diligence, that the employer is a member of a group to which this Division applies.(4) The notification is to be made to the Authority in a form and manner approved by the Authority.(5) The Authority may remove an employer from the register if it is satisfied that the employer has ceased to be an employer that is a member of a group to which this Division applies.(6) If a change occurs in the information provided to the Authority in a notification, the employer must, within 14 days, notify the Authority of that change.Maximum penalty: 500 penalty units.
175J Inspection of records of employers
(1) The Authority may direct an employer in writing to make available, at the time and place specified in the direction, for inspection by a specified person authorised by the Authority, records of a specified kind in the possession of the employer that are relevant to any of the following:(a) the determination of whether the employer is a member of a group,(b) the identity of other members of a group of which the employer is a member.(2) A person authorised under subsection (1) may inspect records in accordance with the terms of the direction and make copies of, or take extracts from, those records.(3) An employer given a direction under this section:(a) must comply with the direction, and(b) must not wilfully obstruct or delay an authorised person when exercising any power under subsection (2).Maximum penalty: 100 penalty units.
(4) If an inspection under this section reveals that an employer has contravened a provision of this Division, the Authority is entitled to recover in a court of competent jurisdiction, as a debt due to the Authority from the employer, the costs incurred by the Authority in connection with that inspection.(5) A certificate issued by the Authority certifying as to the costs incurred by the Authority in connection with such an inspection is evidence of the matters certified.
Division 2B Constitution of employer groups
In this Division:business means:
(a) a profession or trade, or(b) any other activity carried on for fee or reward, or(c) the activity of employing persons to perform duties in connection with another business, or(d) the carrying on of a trust,whether carried on by 1 person or 2 or more persons together.primary group means a primary group constituted under section 175M, 175N, 175O, 175P, 175Q or 175R.
A group is constituted by all the persons or bodies forming a primary group that is not a part of any larger primary group.
175M Primary groups of corporations
(1) Corporations constitute a primary group if they are related corporations within the meaning of the Corporations Act 2001 of the Commonwealth.(2) For the purpose of assessing whether corporations are related under that Act, they are taken to carry on a business and not to be trustee companies.
175N Primary groups arising from the use of common employees
(1) If 2 persons have an agreement under which an employee of 1 of them works solely or mainly in connection with a business carried on by:(a) the other, or(b) both of them,then the 2 persons constitute a primary group.(2) In this section:agreement means an agreement, arrangement or undertaking, whether formal or informal, whether express or implied, and whether or not the agreement, arrangement or undertaking includes provisions in respect of the supply of goods or services.
person includes a set of persons.
Note. Section 175E allows the Authority to exclude persons from a group constituted under this section in certain circumstances.
175O Primary groups of commonly controlled businesses
(1) If a person or set of persons has a controlling interest in each of 2 businesses, the persons who carry on those businesses constitute a primary group.Note. Section 175E allows the Authority to exclude persons from a group constituted under this section in certain circumstances.(2) For the purposes of this section, a person or set of persons has a controlling interest in a business if:(a) in the case of 1 person—the person is the sole owner (whether or not as trustee) of the business, or(b) in the case of a set of persons—the persons are together the exclusive owners (whether or not as trustees) of the business, or(c) in the case of a business carried on by a corporation:(i) the person or each of the set of persons is a director of the corporation and the person or set of persons is entitled to exercise more than 50% of the voting power at meetings of the directors of the corporation, or(ii) a director or set of directors of the corporation that is entitled to exercise more than 50% of the voting power at meetings of the corporation is under an obligation, whether formal or informal, to act in accordance with the direction, instructions or wishes of that person or set of persons, or(d) in the case of a business carried on by a corporation that has a share capital—that person or set of persons can, directly or indirectly, exercise, control the exercise of, or substantially influence the exercise of, more than 50% of the voting power attached to the voting shares issued by the corporation, or(e) in the case of a business carried on by a partnership—that person or set of persons:(i) own (whether beneficially or not) more than 50% of the capital of the partnership, or(ii) is entitled (whether beneficially or not) to more than 50% of the profits of the partnership, or(f) in the case of a business carried on under a trust—the person or set of persons (whether or not as a trustee or trustees of another trust) is the beneficiary in respect of more than 50% of the value of the interests in the first-mentioned trust.(3) If:(a) 2 corporations are related to each other within the meaning of the Corporations Act 2001 of the Commonwealth, and(b) 1 of the corporations has a controlling interest in a business,the other corporation has a controlling interest in the business.(4) If:(a) a person or set of persons has a controlling interest in a business, and(b) a person or set of persons who carry on the business has a controlling interest in another business,the person or set of persons referred to in paragraph (a) has a controlling interest in that other business.(5) If:(a) a person or set of persons is the beneficiary of a trust in respect of more than 50% of the value of the interests in the trust, and(b) the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in a business of the trust,the person or set of persons has a controlling interest in the business.(6) A person who may benefit from a discretionary trust as a result of the trustee or another person, or the trustee and another person, exercising or failing to exercise a power or discretion, is taken, for the purposes of subsection (5), to be a beneficiary in respect of more than 50% of the value of the interests in the trust.(7) If:(a) a person or set of persons has a controlling interest in the business of a trust, and(b) the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of a corporation,the person or set of persons is taken to have a controlling interest in the business of the corporation.(8) If:(a) a person or set of persons has a controlling interest in the business of a trust, and(b) the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of a partnership,the person or set of persons is taken to have a controlling interest in the business of the partnership.(9) Subsection (1) does not apply in relation to a person or set of persons that has a controlling interest in 2 businesses if:(a) in the case of 1 person—the businesses are wholly owned by the person, whether as trustee or otherwise, or(b) in the case of a set of persons—the businesses are wholly owned by the persons as trustees.(10) A statutory State owned corporation (within the meaning of the State Owned Corporations Act 1989) is not a member of the same group as another statutory State owned corporation because of this section.
175P Primary groups arising from tracing of interests in corporations
(1) An entity and a corporation form part of a primary group if the entity has a controlling interest in the corporation.(2) For the purposes of this section, an entity has a controlling interest in a corporation if the corporation has share capital and:(a) the entity has a direct interest in the corporation and the value of that direct interest exceeds 50%, or(b) the entity has an indirect interest in the corporation and the value of that indirect interest exceeds 50%, or(c) the entity has an aggregate interest in the corporation and the value of the aggregate interest exceeds 50%.(3) Schedule 2 has effect.Note. Schedule 2 sets out the manner for determining whether an entity has a direct interest, indirect interest or aggregate interest in a corporation, and the value of such an interest.(4) In this section:associated person has the meaning given by the Duties Act 1997.
entity means:
(a) a person, or(b) a group of associated persons.
175Q Grouping of government departments
The persons, groups of persons and bodies specified for the time being in Column 1 of Schedule 3 to the Public Finance and Audit Act 1983 together constitute a primary group.
175R Smaller primary groups subsumed by larger groups
If a person is a member of 2 or more primary groups, the members of all the groups together constitute a primary group.
175S Grouping provisions to operate independently
The fact that a person is not a member of a primary group constituted under a provision of this Division does not prevent that person from being a member of a primary group constituted under another provision of this Division.
Division 3 Licensing of insurers
(cf former ss 27 (1), 30C (3))
(1) An application for a licence under this Division may be made to the Authority by:(a) any corporation incorporated in New South Wales, or(b) any body corporate (subject to the regulations) if the application is conditional on the licence being endorsed with a specialised insurer endorsement.(2) An application shall be in such form and accompanied by such documents:(a) as may be prescribed by the regulations, and(b) subject to any such regulations, as may be determined by the Authority.(3) Without affecting the generality of subsection (2), the form of application may require particulars of:(a) the places at which the business of the applicant is to be carried on, and(b) in the case of an applicant that is a company—the shareholders, directors and secretary of the company.(4) The Authority may, before determining an application for a licence, require the applicant to advertise or give other notice of the application.(5) An application is to be accompanied by such fee (if any) as is prescribed by the regulations or (subject to the regulations) as is determined by the Authority. Any such fee is to be paid into the WorkCover Authority Fund.
177A Special provisions for specialised insurers
(1) An application for a licence under this Division may be made conditional on the licence being endorsed with a specialised insurer endorsement.(2) The Authority may endorse the licence with a specialised insurer endorsement but only if the Authority is satisfied that the insurance business to be carried on pursuant to the licence will be limited to a particular industry or class of business or employer, and that:(a) the applicant is eligible for such an endorsement (as provided by this section), or(b) the applicant will issue policies only in respect of domestic or similar workers.(3) An applicant for a licence under this Division is eligible for a specialised insurer endorsement if the Authority is satisfied:(a) that the insurance business to be carried on pursuant to the licence will not have an adverse effect on the efficiency of the workers compensation scheme under this Act generally, and(b) that the application is supported by relevant professional, business and other industry bodies involved in the particular industry or class of business or employer concerned, and(c) that the applicant is authorised under section 12 of the Insurance Act 1973 of the Commonwealth to carry on insurance business in Australia (or does not require such an authorisation to lawfully carry on the insurance business to be carried on pursuant to the licence), and(d) as to such other matters as the Authority considers relevant.(4) The Authority may by notice in writing to a licensed insurer withdraw a specialised insurer endorsement that the licence is endorsed with if the Authority is of the opinion that the Authority would not be authorised (on an application for a licence by the insurer) to endorse the licence with a specialised insurer endorsement.(5) The withdrawal of a specialised insurer endorsement is grounds for the suspension or cancellation of the relevant licence under this Division.
178 Determination of application for licence
(cf former s 27 (1))
(1) The Authority shall consider each application for a licence under this Division and may, in its discretion:(a) grant a licence to the applicant, or(b) refuse the application.(2) The Authority may, in determining an application for a licence, take into consideration:(a) the suitability of the applicant,(b) in the case of a corporation:(i) the paid up share capital of the applicant, and(ii) the memorandum and articles of association of the applicant,(c) the orderly run-off of claims for compensation under the former Act,(d) the efficiency of the workers compensation system generally, and(e) such other matters as the Authority thinks fit.(3) For the purposes of subsection (2) (b), the Authority may approve of a model memorandum and articles of association for corporations applying for a licence.(4) Without affecting the generality of subsection (1), the Authority may refuse an application for a licence from a corporation that is authorised by its memorandum and articles of association to carry on any business other than workers compensation business in New South Wales.(5) Without affecting the generality of subsection (1), the Authority may refuse an application for a licence from a corporation that is related to other corporations (within the meaning of the Corporations Act 2001 of the Commonwealth):(a) where any of those other corporations was previously licensed under section 27 of the former Act—if the directors of the applicant corporation do not include the directors of that other corporation, or(b) where none of those other corporations was previously so licensed—if the directors of the applicant corporation do not include the directors of a related corporation that controls the composition of the board of directors of the applicant corporation.
179 Offence—unlicensed insurers
(cf former ss 30D, 30E)
(1) A person (other than a licensed insurer) shall not issue or renew policies of insurance.Maximum penalty: 100 penalty units.
(2) A contravention of subsection (1), or of a condition to which a licence is subject under this Division, does not annul a policy of insurance issued or renewed by an insurer or affect the liability of the insurer to the person insured under the policy.
(cf former s 27 (1))
(1) A licence granted under this Division continues in force until:(a) the expiration of the period (if any) specified in the licence during which it is to be in force, or(b) the licence is, pursuant to this Division, cancelled,whichever first occurs.(2) A licence is not in force while it is suspended pursuant to this Division.
(cf former ss 27 (1) and 29C)
(1) A licence granted to an insurer under this Division is subject to:(a) such conditions as may be prescribed by this Act or the regulations, and(b) such conditions (not inconsistent with this Act or the regulations) as may be imposed by the Authority:(i) on the granting of the licence, or(ii) at any time during the currency of the licence.(2) The Authority may, by notice served on a licensed insurer, impose conditions (or further conditions) to which the licence is to be subject or vary any conditions imposed on the licence by the Authority.(3) A condition to which a licence is subject has effect whether or not it is endorsed on the licence.(4) A licensed insurer shall comply with any condition to which the licence is subject.Maximum penalty: 100 penalty units.
(5) (Repealed)
182 Matters that may be regulated by conditions of licences
(1) Without limiting the generality of section 181, the conditions to which a licence granted under this Division may be subject include conditions for or with respect to:(a) requiring the licensed insurer to undertake a specified amount of workers compensation insurance or of workers compensation insurance of a specified kind,(b) preventing an insurer from undertaking more than a specified amount of workers compensation insurance or of workers compensation insurance of a specified kind, or(c) requiring a charge or other security to be taken by the Authority in respect of the assets of an insurer, or otherwise requiring the insurer to provide security, for the purpose of securing the payment of the insurer’s liabilities (including contingent liabilities) for the payment of compensation under this Act.(2) Conditions may be imposed on a licence:(a) for the purpose of promoting an equitable distribution of high risk insurance business among licensed insurers,(b) for the purpose of ensuring compliance with the obligations of the licensed insurer,(c) for the purpose of preserving premiums paid for policies of insurance,(d) for the purpose of the efficiency of the workers compensation system generally, or(e) for any other purpose of the same or of a different kind or nature that is not inconsistent with this Act.(3) An amount of workers compensation insurance may be prescribed in a condition of a licence by specifying a level of premium income or in any other manner.
183 Cancellation or suspension of licences
(cf former ss 29–29C)
(1) The Authority may cancel or suspend a licence granted under this Division by notice served on the licensed insurer.(2) The Authority may cancel or suspend a licence for any reason it thinks fit and is not required to give the reasons for its decision.(3) Without affecting the generality of subsection (2), the Authority may cancel or suspend a licence for reasons that relate to the workers compensation system generally, whether or not the reasons relate to the efficiency and conduct of the licensed insurer.(4) The Authority shall, as far as practicable, give a licensed insurer whose licence it proposes to cancel or suspend an opportunity to make representations on the matter.(5) (Repealed)(6) A licence surrendered by a licensed insurer is cancelled if and when the Authority approves of the surrender.
183A Imposition of civil penalty on or censure of licensed insurer or self-insurer
(1) If the Board is satisfied that a person who is or was a licensed insurer or self-insurer has contravened its licence or this Act or the regulations, the Board may:(a) impose a civil penalty on the person not exceeding $50,000, or(b) issue a letter of censure to the person.(2) Before imposing a civil penalty, the Board is required to give the person concerned an opportunity to make written submissions with respect to the alleged contravention, but is not required to conduct a hearing into the matter.(3) A civil penalty that has been imposed under this section may be recovered by the Authority in a court of competent jurisdiction as a debt due to the Crown.(4) (Repealed)(5) The Board may cause a letter of censure issued by it under this section to be published.(6) A civil penalty that is paid or recovered is payable into the WorkCover Authority Fund.(7) The powers of the Board under this section do not limit any powers of the Authority under this Act or the Regulations.
184 Cancellation of policies following cancellation or suspension of insurer’s licence
(cf former s 30F)
(1) In this section:insurer means a former licensed insurer.
period means, in relation to a policy of insurance:
(a) the period in respect of which the insurer has by the terms of the policy, or(b) if the policy has been renewed, the further period in respect of which the insurer has, by the terms of the renewal,accepted liability to indemnify, in respect of any matters, the employer who obtained the policy.prescribed day means the day on which the licence of the insurer ceases to be in force.
(2) This section applies where the licence of an insurer ceases to be in force.(3) In any case where this section applies, the employer who obtained a policy of insurance may, by notice in writing given on or after the prescribed day to the insurer from whom the employer obtained the policy, cancel the policy as from a date and time specified in the notice.(4) In any case where this section applies, the insurer who issued a policy of insurance shall, within 14 days after the prescribed day, post to the employer who obtained the policy, at the address of the employer last known to the insurer, a notice of cancellation of the policy.Maximum penalty: 20 penalty units.
(5) Such a notice of cancellation by the insurer must state that the cancellation of the policy of insurance will take effect at 4 pm on a date specified in the notice (being a date that is the twenty-eighth day after the day on which the notice is posted), and the effect of the notice is to cancel the policy accordingly.(6) The Authority may, by notice to an insurer, or by order, and in relation to all the policies or any policies or classes of policies issued by the insurer, shorten or extend the time prescribed by subsection (4) or advance or defer the date to be stated in a notice pursuant to subsection (5), or both.(7) The power conferred by subsection (6) to extend a time prescribed by subsection (4) may be exercised before or after that time has expired.(8) In any case where this section applies, the Authority may, by notice to the insurer and employer, cancel a policy of insurance as from a date and time specified in the notice.(9) The premium for the issue or renewal of a policy of insurance cancelled under this section shall, notwithstanding any agreement to the contrary, be reduced in the proportion which so much of the period of the policy as is after the day on which the cancellation has effect bears to the whole period of the policy.(10) If an employer has paid to an insurer by way of premium for the issue or renewal of a policy of insurance a greater amount than the reduced premium referred to in subsection (9), the insurer shall forthwith repay the excess amount to the employer.Maximum penalty: 20 penalty units.
(11) An employer may recover in a court of competent jurisdiction as a debt any amount which is required by subsection (10) to be repaid to the employer.(12) An insurer shall, if so required in writing by the Authority, supply to the Authority in writing and within a time specified by the Authority such particulars as the Authority may require in respect of:(a) policies of insurance issued by the insurer, the periods of which were current at the time that the insurer’s licence ceased to be in force, and(b) the employers to whom the policies were issued.Maximum penalty: 20 penalty units.
(13) The effect of the cancellation of a policy of insurance under this section is to terminate the period of the policy but, subject to this section, without affecting any right, obligation or liability acquired, accrued or incurred under the policy in respect of that period before its termination.(14) This section does not apply to any policies of insurance assigned to another insurer under section 185.
185 Assignment of policies of former insurers etc
(1) In this section:former insurer means a former licensed insurer whose licence has ceased to be in force by cancellation, suspension or the expiry of the term of the licence.
(2) The Authority may assign all or any class of policies of insurance of a former insurer to a licensed insurer nominated by the Authority.(3) Policies of insurance may be assigned under this section by notice served by the Authority on the former insurer concerned.(4)–(6) (Repealed)(7) An assignment of an insurance policy under this section:(a) transfers the rights, obligations and liabilities under the policy of the former insurer to the licensed insurer to which the policy is assigned, and(b) does not otherwise affect the rights, obligations or liabilities acquired, accrued or incurred under the policy.(8) For the purposes of this Act, any such assigned policy is to be taken to have been issued or renewed by the licensed insurer to which it is assigned.(9) If an insurance policy is assigned under this section, the former insurer concerned must, subject to any directions of the Authority, provide the licensed insurer to which the policy is assigned with:(a) copies of all documents relating to the policy or to claims under it, and(b) (Repealed)Maximum penalty: 20 penalty units.
186 Records and evidence relating to licences
(cf former s 30C (1), (2))
(1) The Authority shall keep records in relation to all licences granted by the Authority under this Division, including particulars of:(a) the granting, refusal, duration, conditions, cancellation and suspension of licences, and(b) such other matters relating to licences as the Authority thinks fit.(2) A certificate executed by the Authority and certifying that on any date or during any period specified in the certificate the particulars set forth in the certificate as to any of the matters referred to in subsection (1) did or did not appear on or from the records is (without proof of its execution by the Authority and without the production of any record or document on which the certificate is founded) admissible in any proceedings and is evidence of the particulars certified in and by the certificate.
187 Liabilities on Commonwealth insurers—special condition
(1) In this section:Commonwealth insurer means a company authorised to carry on insurance business under the Insurance Act 1973 of the Commonwealth or a company registered under the Life Insurance Act 1945 of the Commonwealth.
licensed insurer includes an insurer formerly licensed under this Division.
(2) It is a condition of a licence granted under this Division that the licensed insurer will not, without the approval of the Authority and the concurrence of the Treasurer of the Commonwealth, enter into a contract or arrangement whereby a Commonwealth insurer is or may become liable to pay any money to or on behalf of the licensed insurer.(3) A contract or an arrangement is not invalid merely because it has been entered into in contravention of subsection (2).(4) The Supreme Court may, on the application of the Authority or the Treasurer of the Commonwealth, declare invalid a contract or arrangement entered into in contravention of subsection (2) if satisfied that the declaration will not prejudice the rights arising out of the contract or arrangement of any person who entered into the contract or arrangement in good faith and without knowledge of the contravention.(5) (Repealed)
188 Re-insurance—special condition
(1) It is a condition of a licence granted under this Division that the licensed insurer will not, without the approval of the Authority, enter into a contract or an arrangement for re-insurance in respect of liabilities under policies of insurance issued or renewed by the licensed insurer.(2) The Authority may give any such approval subject to conditions, including a condition requiring a joint contract or arrangement for re-insurance with other licensed insurers.(3) A contract or an arrangement for re-insurance is not invalid merely because it has been entered into in contravention of subsection (1).(4) Subsection (1) does not apply to a specialised licensed insurer.
189 Information and records as to business etc to be supplied to Authority by insurers
(cf former ss 28, 30B)
(1) In this section:insurer means a licensed insurer, a former licensed insurer, a self-insurer or a former self-insurer, and includes a scheme agent.
(2) The Authority may require an insurer:(a) to disclose to the Authority specified information relating to the business and financial position of the insurer or of any corporation which is a related corporation, or(b) to forward to the Authority, or make available for inspection, specified records, or copies or extracts from specified records, kept by the insurer or by any corporation which is a related corporation.(3) A requirement under this section:(a) shall be made in writing and served on the insurer, and(b) shall specify the manner in which and the time within which the requirement is to be complied with.(4) The manner in which a requirement is to be complied with may include the supply to the Authority of a certificate by a registered tax agent, a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth) or an actuary approved by the Authority as to the correctness of any specified information or specified records (or copies of or extracts from specified records).(5) Unless the insurer satisfies the court that it is not within its power to comply with the requirement, an insurer who fails to comply with the requirement is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
190 Notification to Authority of certain defaults in relation to insurers
(cf former s 28 (1) (b))
(1) In this section:insurer means a licensed insurer, a former licensed insurer, a self-insurer or a scheme agent.
(2) An insurer (being a corporation) shall notify the Authority in writing of any of the following events or things within 21 days after the event or thing happens (whether within or outside the State):(a) any default by the licensee or a related corporation in the payment of principal or interest under any debenture issued by the licensee or corporation,(b) the appointment of a liquidator, receiver or manager of the property of the licensee or a related corporation,(c) that the licensee or a related corporation has resolved by special resolution that it be wound up voluntarily or by a court,(d) that a person claiming to be a creditor by assignment or otherwise of the licensee or a related corporation for a sum exceeding $1,000 then due has served on the licensee or corporation by leaving at its registered office a demand requiring the licensee or corporation to pay the sum so claimed to be due, and the licensee or corporation has for 3 weeks thereafter failed to pay the sum or to secure or compound for it to the satisfaction of the person claiming to be a creditor,(e) the return unsatisfied in whole or part of execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the licensee or a related corporation,(f) the receipt by the licensee or a related corporation or the giving, or causing to be given, by the licensee or corporation, of any bidder’s statement or target’s statement within the meaning of the Corporations Act 2001 of the Commonwealth,(g) the making of an order by any court for the winding-up of the licensee or a related corporation,(h) the receipt by the licensee or a related corporation of any notice of an application for an order by any court for the winding-up of the licensee or corporation.Maximum penalty: 100 penalty units.
191 Power of Supreme Court to deal with insurers or former insurers unable to meet liabilities etc
(1) The Supreme Court may, on the application of the Authority, make such orders as the Supreme Court considers necessary or desirable for the purpose of protecting the interests of:(a) the holders of policies of insurance issued or renewed by a licensed insurer or a former licensed insurer (whether before or after the commencement of this section), and(b) the workers to whom those policies apply.(2) The Supreme Court may make such an order if it is satisfied that the licensed insurer or former licensed insurer:(a) is not able to meet the insurer’s liabilities under the policies of insurance or may not be able to do so, or(b) has acted or may act in a manner that is prejudicial to the interests of the holders of the policies of insurance or the workers to whom those policies apply.(3) Without limiting the generality of subsection (1), the Supreme Court may make the following orders:(a) an order regulating the administration and payment of claims under the policies of insurance,(b) an order prohibiting or regulating the transfer or disposal of, or other dealing in, the assets of the licensed insurer or former licensed insurer,(c) if the licensed insurer or former licensed insurer is a corporation—an order requiring it to discharge its liabilities under the policies of insurance out of the assets of the corporation and the assets of any related corporation,(d) if the licensed insurer or former licensed insurer is a corporation—an order appointing a receiver or receiver and manager, having such powers as the Supreme Court orders, of the property or of part of the property of the corporation or of any related corporation.(4) If an application is made to the Supreme Court for an order under subsection (1), the Supreme Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.(5) If an application is made to the Supreme Court for an order under subsection (1), the Supreme Court shall not require the Authority or any other person, as a condition of granting an interim order, to give any undertaking as to damages.(6) If the Supreme Court has made an order under this section, the Supreme Court may, on application by the Authority or by any person affected by the order, make a further order rescinding or varying the firstmentioned order.(7) A person shall not contravene, whether by act or omission, an order made by the Supreme Court under this section that is applicable to the person.Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
(8) The Supreme Court shall not exercise its powers under this section in respect of a corporation which is in the course of being wound up.(9) The powers of the Supreme Court under this section are in addition to any other powers of the Supreme Court.(10) (Repealed)
192 Exclusion of insurance brokers, agents or intermediaries
(cf former s 18 (9A))
(1A) A reference:(a) in this section to a licensed insurer includes a reference to a scheme agent, and(b) in subsections (1)–(3) to an agent does not include a reference to a scheme agent.(1) A licensed insurer shall not pay any amount by way of commission or other remuneration to an insurance broker, agent or intermediary in relation to the issue or renewal of a policy of insurance.(2) A licensed insurer shall send any cover note, policy of insurance or renewal notice (or any notice under any policy of insurance) direct to the employer concerned and not to an insurance broker, agent or intermediary.(3) An employer shall pay any premium under a policy of insurance direct to the licensed insurer and not to an insurance broker, agent or intermediary.(4) This section does not apply in any case specified in the regulations or approved by the Authority.(5) This section does not apply to a specialised insurer.Maximum penalty: 200 penalty units.
192A Claims administration manual
(cf former s 93B)
(1) The Authority may prepare and publish a claims manual for use by licensed insurers under this Division.(2) In preparing the claims manual, the Authority is required to promote, as far as practicable:(a) the prompt processing of claims and payment of amounts duly claimed, and(b) the giving of information about workers’ entitlements and about procedures for the making of claims and the resolution of disputes, and(c) the minimisation of the effect of injuries to workers by the making of prompt arrangements for rehabilitation, and(d) the proper investigation of liability for claims, and(e) the recovery of proper contributions in connection with claims from other insurers or persons.(3) The claims manual may make provision (not inconsistent with this Act, the 1998 Act or the regulations under those Acts) in connection with all matters relating to the administration of claims, including:(a) liaison between insurers and employers concerning rehabilitation assessment of injured workers, and(b) the provision or arrangement of suitable employment or rehabilitation training for partially incapacitated workers, and(c) the monitoring of employment-seeking activities or rehabilitation training by partially incapacitated workers, and(d) arrangements for the settlement of claims for damages, and(e) procedures to be followed before a claim is made, such as procedures in connection with early notification of injury and provisional acceptance of liability.(3A) The WorkCover Guidelines under the 1998 Act can make provision in connection with any matter in connection with which the claims manual can make provision.(4) The Authority may give an insurer directions as to the procedure to be followed in the administration of any claim or class of claims in order to comply with the claims manual, the WorkCover Guidelines, the 1998 Act and this Act.(4A) An insurer who fails to comply with a direction under subsection (4) is guilty of an offence.Maximum penalty: 50 penalty units.
(5) It is a condition of the licence of an insurer under this Division that the insurer comply with any direction given to the insurer under this section.(6) Any claims manual in force under section 93B, immediately before its repeal, is taken to have been prepared and published under this section.
Division 4 Regulation of insurers and miscellaneous provisions
In this Division:accounting records includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up.
insurer means a licensed insurer or self-insurer.
194 Directions to insurers with respect to claims procedures
(1) The Authority may give insurers (or any particular insurer or class of insurers) directions for or with respect to requiring the adoption and use by them of specified processes, procedures, strategies, policies and methods in the handling and administration of claims for compensation or work injury damages, either generally or in respect of a specified class or classes of cases.(2) It is a condition of an insurer’s licence under this Act that the insurer must comply with a direction under this section.
(1) An insurer shall keep such accounting and other records in relation to the business or financial position of the insurer:(a) as may be prescribed by the regulations, or(b) subject to the regulations, as may be directed by the Authority by notice served on the insurer.(2) The regulations or directions of the Authority may prescribe the manner in which financial transactions are to be accounted for in any such records.(3) An insurer shall lodge with the Authority returns in relation to the business or financial position of the insurer in such form, containing such particulars and accompanied by such documents:(a) as may be prescribed by the regulations, or(b) subject to the regulations, as may be directed by the Authority by notice served on the insurer.(4) Returns shall be lodged:(a) within 6 weeks after each 31 March, 30 June, 30 September and 31 December or at such other times as are prescribed by the regulations, and(b) at such other times as the Authority, by notice served on the insurer, directs.(5) The regulations or directions of the Authority may require returns, and documents accompanying returns, to be certified by an auditor.(6) (Repealed)
202 Audit of accounting records of insurers
(1AA) A reference in this section to an insurer does not include a reference to a specialised insurer or a self-insurer.(1) The Authority may appoint an appropriately qualified person to audit or inspect, and report to the Authority on, the accounting and other records relating to the business or financial position of an insurer.(1A) (Repealed)(2) A person so appointed by the Authority is, for the purpose of exercising any functions under this section, entitled to inspect the accounting and other records of the insurer.(3) An insurer shall provide all reasonable assistance for the exercise of those functions.(4) A person shall not wilfully obstruct or delay a person exercising a function under this section.Maximum penalty: 1,000 penalty units.
(5) A person exercising functions under this section has qualified privilege in proceedings for defamation in respect of any statement that the person makes orally or in writing in the course of the exercise of those functions.(6) (Repealed)
202A Performance audits by Authority
(1) The Authority may conduct an audit of all or any particular workers compensation activities of an insurer to determine whether the insurer is carrying out those activities effectively, economically and efficiently and in compliance with the workers compensation legislation and any relevant agency arrangement.(2) A single audit under this section may relate to the activities of more than one insurer.(3) An officer of the Authority appointed by the Authority for the purposes of this section is, for the purposes of the exercise of the Authority’s functions under this section, entitled to inspect the accounting and other records of an insurer.(4) A person must not wilfully obstruct or delay a person exercising a function under this section.Maximum penalty: 1,000 penalty units.
(5) An insurer must provide all reasonable assistance to the Authority for the purpose of facilitating the exercise of functions by the Authority under this section.(6) The Authority may publish such reports and other information concerning an audit under this section as the Authority thinks fit.
208 Contributions by licensed insurers to Insurance Fund
(1) Each licensed insurer shall pay the contributions prescribed by this section to the Authority for payment into the Insurance Fund.(2) The contribution to be paid by a licensed insurer in respect of each financial year for which the regulations require a contribution to be made is an amount equal to the percentage (prescribed by the regulations) of the premium income of the licensed insurer in respect of that financial year.(3) A contribution is payable at such times and in respect of premium income received during such periods as may be prescribed by the regulations.(4) If a contribution payable by a licensed insurer has not been paid within the time prescribed by or under this section, the amount of the contribution together with a late payment fee calculated at the rate of 15 per cent of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction.(5) A certificate executed by the Authority certifying that an amount specified in the certificate was the premium income received by a licensed insurer so specified in respect of a financial year so specified is (without proof of its execution by the Authority) admissible in any proceedings for the purposes of this section and is evidence of the matters specified in the certificate.(6) More than one percentage may be prescribed for different portions of a financial year for the purposes of subsection (2).
208AA Contributions by exiting employers
(1) In this section:exiting employer means an employer who on or after 1 July 1998 became or becomes:
(a) a self-insurer under this Act or the 1998 Act, or(b) insured for the purposes of this Act by a specialised insurer under this Act or the 1998 Act, or(c) licensed under Part VIIIB of the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth (pursuant to a declaration of eligibility under that Part made on the basis that the employer is a corporation carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority).insured liabilities of an exiting employer means the following outstanding liabilities of the exiting employer:
(a) any liabilities of the exiting employer under this Act in respect of workers employed by the exiting employer while insured under a policy of insurance issued by an insurer licensed or previously licensed under Division 3 of Part 7 (other than a specialised insurer),(b) any liabilities of the exiting employer independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State or Territory or the Commonwealth or a liability arising under the law of another country) for injuries received by workers employed by the person while insured under a policy of insurance referred to in paragraph (a).responsible insurer for an exiting employer means:
(a) the exiting employer, except in a case in which paragraph (b) or (c) applies, or(b) in the case of an exiting employer that is covered by a licence under section 211A—the exiting employer and the licence holder (jointly and severally), or(c) in the case of an exiting employer that is insured by a specialised insurer—the specialised insurer that insures the exiting employer.(2) The object of this section is to provide for the protection of the Insurance Fund against deficiencies that may result from the insured liabilities of exiting employers.(3) The Authority may by order published in the Gazette require the responsible insurer for an exiting employer to pay contributions for the purposes of this section. The order is to provide for the amount of the required contributions or for the manner in which they are to be calculated and may require different contributions to be paid by different responsible insurers or in respect of different exiting employers.(4) The following provisions apply in respect of the contributions required to be paid by such an order:(a) the responsible insurer for an exiting employer must pay the required contributions to the Authority for payment into the Insurance Fund,(b) the required contributions must be paid at such times and in such manner as the order requires,(c) if the responsible insurer has not paid a contribution within the required time, the amount of the contribution together with a late payment fee calculated at the rate of 15% of that amount per annum compounded quarterly (or, where another rate is prescribed, that other rate) may be recovered by the Authority as a debt in any court of competent jurisdiction,(d) a certificate executed by the Authority certifying that an amount specified in the certificate is the amount recoverable by the Authority under paragraph (c) is (without proof of its execution by the Authority) admissible in any proceedings for the purposes of this section and is evidence of the matters specified in the certificate.(5) The Authority may for the purposes of this section enter into an agreement with the responsible insurer for an exiting employer under which the responsible insurer agrees to assume the exiting employer’s insured liabilities.(6) When the Authority enters into such an agreement the following provisions have effect (whether or not there is any breach of the agreement):(a) the responsible insurer is not liable to pay any contribution that would otherwise be payable by the responsible insurer under this section,(b) a licensed insurer is not liable under any policy of insurance (despite the terms of the policy) in respect of any liability that the responsible insurer has agreed to assume under the agreement with the Authority,(c) a licensed insurer who would otherwise be liable under a policy of insurance in respect of any such liability must comply with any direction of the Authority to provide information to the responsible insurer with respect to such a liability and any related claim,(d) a licensed insurer must pay to the responsible insurer such amount as the Authority determines to be fair and reasonable,(e) the Authority may from time to time direct that the provisions of the agreement (and the provisions of this section) do not apply in respect of a specified claim or class of claims,(f) an exiting employer who is a self-insurer is taken to be a self-insurer in respect of any liability that the exiting employer has (as responsible insurer) agreed to assume under the agreement with the Authority.(7) It is a condition of the licence of a licensed insurer that the licensed insurer must comply with any direction of the Authority under this section.
209 Offences for contravention of this Division
An insurer who contravenes, whether by act or omission, any requirement imposed on the insurer by or under this Division is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
(cf former s 18 (1A))
(1) An application for a licence under this Division may be made to the Authority by any employer.(1A) An application may be made by a company that is not an employer if the licence is to cover subsidiaries of the company that are employers.(2) An application shall be in such form and accompanied by such documents:(a) as may be prescribed by the regulations, and(b) subject to any such regulations, as may be determined by the Authority.(3) The Authority may, before determining an application for a licence, require the applicant to advertise or give other notice of the application.(4) An application is to be accompanied by such fee (if any) as is prescribed by the regulations or (subject to the regulations) as is determined by the Authority. Any such fee is to be paid into the WorkCover Authority Fund.
211 Determination of application for licence
(cf former s 18 (1A))
(1) The Authority shall consider each application for a licence under this Division and may, in its discretion:(a) grant a licence to the applicant, or(b) refuse the application.(2) The Authority may, in determining an application for a licence, take into consideration:(a) the suitability of the applicant,(b) the financial ability of the applicant to undertake the liabilities under this Act,(c) the efficiency of the workers compensation system generally, and(d) such other matters as the Authority thinks fit.(3) The Authority may take the matters under subsection (2) into consideration in respect of both the applicant for the licence and any subsidiary to be covered by the licence.(4) The Authority may issue guidelines relating to the matters that the Authority takes into consideration under subsection (2) in determining an application for a licence.
211A Endorsement of subsidiaries on self-insurer’s licence
(1) The Authority may endorse on a licence granted under this Division the name of one or more wholly owned subsidiaries of the licence holder. While the name of a company is endorsed on an employer’s licence, the company is taken to be covered by the licence.(2) The Authority may at any time amend such an endorsement by adding, altering or deleting the name of a company. An amendment is made by the Authority giving notice of it to the licence holder and takes effect on the day notice is given or on a later day specified in the notice.(3) A company which holds a licence under this Division and any subsidiary covered by the licence are jointly and severally liable for any contribution required to be made to any fund under this Act by the subsidiary.(4) The licence of a company under this Division:(a) may be subject to conditions under this Act relating to the obligations of a subsidiary covered by the licence, and(b) may be cancelled or suspended under this Act because of the acts or omissions of the subsidiary.(5) The meaning of wholly owned subsidiary is the same as in the Corporations Act 2001 of the Commonwealth.
211B Government employers covered by Government managed fund scheme to be self-insurers
(1) Any Government employer covered for the time being by the Government’s managed fund scheme is taken to be a self-insurer for the purposes of this Act.(2) The Government’s managed fund scheme is any arrangement under which the self-insurer liabilities (within the meaning of section 216) of particular Government employers covered by the arrangement are paid by the Government of the State or by the Self Insurance Corporation on its behalf.(3) The Self Insurance Corporation may enter into an arrangement with the Authority under which the Corporation acts on behalf of Government employers for the purpose of paying contributions under this Act and for other purposes of this Act.(4) The other provisions of this Division do not apply to self-insurers referred to in this section. However, the Authority may, with the approval of the Treasurer, impose conditions on the authority conferred by this section on such self-insurers (being conditions of a kind that the authority could impose on the licence of a self-insurer under this Division).(5) This section does not apply to any Government employers who are separately licensed under this Division as self-insurers.
212 Provisions relating to licences
(cf former s 18 (1A)–(1C))
The following provisions of Division 3 (Licensing of insurers) apply to and in respect of licences granted under this Division in the same way as they apply to licences granted under Division 3:(a) section 180 (Duration of licences),(b) section 181 (Conditions of licences),(c) section 182 (Matters that may be regulated by conditions of licences),(d) section 183 (Cancellation or suspension of licences),(e) section 186 (Records and evidence relating to licences).
213 Deposit required for self-insurers and former self-insurers
(1) A self-insurer who is granted a licence under this Division must on the grant of the licence deposit with the Authority an amount of money determined by the Authority in respect of the self-insurer.Maximum penalty: 100 penalty units.
(2) A person who is or was a self-insurer must deposit with the Authority, at such time or times as the Authority may direct by notice to the person, such additional amount or amounts as the Authority determines to be necessary to ensure that the amount the person has on deposit under this Division is the person’s required deposit amount for the time being.Maximum penalty: 100 penalty units.
(3) A person who has ceased to be a self-insurer can be required to deposit money with the Authority under this section even if the amount of any previous deposit of the person has been refunded to the person under section 216.(4) The Authority may at any time refund to a person who has money on deposit with the Authority under this section any amount by which the person’s deposit exceeds the person’s required deposit amount for the time being.(5) A person who is or was a self-insurer must comply with any written direction of the Authority to provide the Authority with specified information (including actuarial information) for the purpose of enabling the Authority to determine the person’s required deposit amount from time to time.Maximum penalty: 50 penalty units.
(6) No deposit is payable under this Division by:(a) a Government employer, or(b) any other employer approved by the Authority.(7) In this section:required deposit amount of a person means the amount that the Authority determines to be the amount required to adequately provide for all the accrued, continuing, future and contingent self-insurer liabilities of the person and of the person’s subsidiaries.
self-insurer liabilities of a person means:
(a) any liabilities of the person under this Act in respect of workers employed by the person while a self-insurer, or(b) any liabilities of the person independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for injuries received by workers employed by the person while a self-insurer (including any injury that is a dust disease as defined in the Workers’ Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined).
(cf former s 21)
(1) Every amount of money deposited with the Authority by a person under this Division shall be invested and re-invested from time to time as occasion requires in any manner for the time being authorised for the investment of trust funds.(2) The interest on any such investment shall be paid to the person depositing the sum of money.(3) The investment and redemption shall be at par.(4) If a person to whom interest would otherwise be payable under this section is in breach of any obligation arising under this Division to deposit an additional amount of money with the Authority, the Authority may, instead of paying the interest to the person, apply the interest in full or partial satisfaction of the person’s obligation to make the additional deposit. Any amount of interest so applied by the Authority is taken to have been deposited with the Authority by the person concerned.
215 Alternative method of giving security
(cf former s 22)
(1) The obligation imposed by this Division on a person to deposit with the Authority any specified amount of money may be satisfied in whole or in part by the deposit by the person of securities of equal value issued or guaranteed by the State or the Commonwealth.(2) The value of any such securities shall, for the purposes of this section, be deemed to be their face value.(3) If the market value of any such securities is at any time below par, the Authority may require the person to deposit further securities to such an amount that the total market value of all the securities deposited by the person equals the amount of the deposit required to be made by the person.(4) A person must comply with a requirement under subsection (3).Maximum penalty: 100 penalty units.
(5) Every security so deposited with the Authority shall (unless it is negotiable) bear or be accompanied by an assignment in blank executed by the person making the deposit.(6) A reference in this Division to the amount of money required to be deposited with the Authority shall be deemed to include a reference to any securities substituted in whole or in part for that amount under the authority of this section.(7) The Authority may convert any such securities into money by sale, hypothecation or otherwise for the purpose of paying or satisfying under section 216 any claims, judgments or awards against a person.
215A Guarantee as alternative to deposit
(1) It is sufficient compliance with a requirement of this Division to deposit an amount of money with the Authority if a guarantee from a bank, building society or credit union guaranteeing payment of the amount is provided on terms acceptable to the Authority.In the case of a self-insurer that is a State owned corporation, the guarantee may also be provided by the Treasury Corporation on terms acceptable to the Authority.
(2) If a refund of part of a deposit is authorised under section 213, the authorisation operates as authority for the Authority to give the appropriate partial release from a guarantee provided instead of a deposit.(3) Any amount paid to the Authority pursuant to such a guarantee is to be regarded for the purposes of this Division as having been deposited with the Authority by the person concerned and is to be dealt with accordingly.(4) In this section:guarantee includes undertaking.
215B Bond as alternative to deposit
It is sufficient compliance with a requirement of this Division to deposit an amount of money with the Authority if a bond is provided, on terms acceptable to the Authority, as security for the amount required to be deposited.
216 Application and refund of deposit
(cf former ss 24, 25A)
(1) The Authority is to hold every amount of money deposited under this Division on trust for the payment and satisfaction of all claims, judgments or awards (not otherwise paid or satisfied):(a) against the person making the deposit in respect of the person’s self-insurer liabilities, and(b) against any person that is a subsidiary of the person making the deposit (being a subsidiary that is or was covered for the time being by the self-insurer licence of the person making the deposit) in respect of the subsidiary’s self-insurer liabilities.(2) An amount of money deposited with the Authority under this Division is not liable to be attached or levied on or made subject to any debts of or claims against the person making the deposit, except as provided by subsection (1).(3) A person who has deposited an amount of money with the Authority under this Division is, if the person has ceased to be a self-insurer, entitled to a refund of the amount so deposited and standing to the person’s credit with the Authority:(a) on the expiration of 3 months after service on the Authority of a written request for the refund, and(b) on satisfying the Authority that all accrued, continuing, future and contingent self-insurer liabilities of the person or the person’s subsidiaries have been discharged or adequately provided for.(4) In this section, self-insurer liabilities of a person has the same meaning as in section 213.
In this Division:transferred claim means a claim that is the subject of a claims transfer agreement under this Division.
218 Agreements for transfer of claims to insurers
(1) The Authority may enter into an agreement (a claims transfer agreement) with a corporation for the transfer to the corporation of the liabilities of the Nominal Insurer in respect of a claim under a policy of insurance for which the Nominal Insurer is the insurer.(2) A claims transfer agreement can relate to particular claims or classes of claims.(3) A claims transfer agreement entered into with a corporation may include provision for the following:(a) the transfer to the corporation of any assets of the Insurance Fund in connection with the liabilities transferred by the agreement,(b) requirements for the giving of notice to the person who is the employer in respect of a transferred claim.
219 Effect of claims transfer agreement
(1) A claims transfer agreement operates to transfer to the corporation concerned (the claim agent) the rights and liabilities of the Nominal Insurer in connection with a transferred claim, and for that purpose the following transitional arrangements have effect:(a) a transferred claim is deemed to have been made against the claim agent,(b) any act, matter or thing done or omitted to be done by the Nominal Insurer in connection with a transferred claim before the transfer is taken to have been done or omitted by the claim agent,(c) the Nominal Insurer ceases to be the insurer in respect of the policy of insurance to which the transferred claim relates, but only for the purposes of the rights, obligations and liabilities of the insurer in connection with the transferred claim,(d) the claim agent is deemed to be the insurer in respect of the policy of insurance to which the transferred claim relates, but only for the purposes of the rights, obligations and liabilities of the insurer in connection with the transferred claim,(e) if the claim agent is not a licensed insurer, the claim agent is deemed to be a licensed insurer in respect of the policy of insurance to which the transferred claim relates,(f) any proceedings commenced by or against the Nominal Insurer in connection with a transferred claim and pending immediately before the transfer are deemed to be proceedings by or against the claim agent,(g) all records that are the property of the Nominal Insurer and that relate to a transferred claim (or a judgment or award made in respect of a transferred claim) become the property of and are to be transferred to the claim agent.(2) The transitional arrangements are subject to the terms of the claims transfer agreement.(3) The regulations may make provision for or with respect to the entering into and operation of claims transfer agreements, including by prescribing additional transitional arrangements for the operation of claims transfer agreements.
220 Conditions of claims transfer agreement
(1) A claims transfer agreement is subject to the following conditions:(a) such conditions as may be included in the agreement,(b) such conditions as the Authority may from time to time notify to the claim agent during the currency of the agreement,(c) any conditions prescribed by the regulations.(2) A condition of a claims transfer agreement also operates as a condition of the insurer’s licence (or the insurer’s licence that the claim agent is deemed to hold in respect of a policy of insurance to which a transferred claim relates).(3) A corporation that is a party to a claims transfer agreement must comply with any conditions to which the claims transfer agreement is subject.Maximum penalty: 100 penalty units.
Division 6A Defaulting insurers etc
In this Division:defaulting insurer means an insurer to which an order of the Minister in force under section 224B relates, but does not include an insolvent insurer.
insolvent insurer means an insolvent insurer within the meaning of Division 7.
224B Declaration of defaulting insurers
(1) If the Minister is satisfied that a licensed insurer or former licensed insurer is unable to meet claims and other liabilities under policies of insurance issued or renewed by it, the Minister may, by order in writing, declare that the insurer is a defaulting insurer for the purposes of this Division.(2) An insolvent insurer may not be declared to be a defaulting insurer and the declaration of a defaulting insurer ceases to have effect if the insurer is or becomes an insolvent insurer.(3) (Repealed)
224C Insurance Fund may be applied to meet claims etc of defaulting insurers
(1) Amounts standing to the credit of the Insurance Fund may be applied by the Nominal Insurer for the purposes of:(a) satisfying, on behalf of the defaulting insurer, claims, judgments or awards arising from or relating to policies of insurance issued or renewed by the defaulting insurer (whether before or after the commencement of this section), and(b) meeting the management expenses incurred in respect of satisfying those claims, judgments or awards.(2) Amounts applied by the Nominal Insurer under this section are to be applied in accordance with such priorities among claims, judgments or awards as the Nominal Insurer determines.(3) The Nominal Insurer may recover from the defaulting insurer as a debt in any court of competent jurisdiction the payments made on its behalf by the Nominal Insurer under this section and not repaid to the Nominal Insurer by the defaulting insurer.(4) Any amounts repaid by or recovered from a defaulting insurer are to be credited to the Insurance Fund.(5) The obligation of a defaulting insurer to repay any amounts paid on its behalf under this section does not cease because the insurer becomes an insolvent insurer.
Division 7 Insurers’ Guarantee Fund
(cf former s 30O)
(1) In this Division:financial year in relation to an insurer other than a self-insurer:
(a) includes the period after 4 pm on the day preceding the first day of the financial year, and(b) does not include the period after 4 pm on the last day of the financial year.insolvent insurer means an insurer to which an order of the Minister in force under section 226 relates.
insurer means a licensed insurer, a former licensed insurer or a self-insurer, but does not include an insolvent insurer.
policy of insurance issued by an insolvent insurer means:
(a) a policy of insurance issued by an insolvent insurer, whether before or after the insurer became an insolvent insurer, or(b) a policy of insurance, issued by a person other than an insolvent insurer, in respect of which an insolvent insurer has (whether before or after becoming an insolvent insurer) entered into a contract or an arrangement whereby the insolvent insurer is (or would but for its dissolution be) liable to indemnify the person against liability of the person under the policy.(2) In this Division, a reference to a liquidator or to a provisional liquidator includes a reference to a liquidator or a provisional liquidator appointed outside New South Wales.(3) So far as the legislative power of Parliament permits, the liquidator of an insolvent insurer shall have and may exercise outside New South Wales the functions conferred or imposed on the liquidator by this Division, in addition to having and exercising those functions within New South Wales.
(cf former s 30P)
(1) If the Minister is satisfied that a liquidator or provisional liquidator has been appointed in respect of an insurer, or that an insurer has been dissolved, the Minister may, by order published in the Gazette, declare that the insurer is an insolvent insurer for the purposes of this Division.(2) (Repealed)
(cf former s 30Q)
(1) There is established a fund to be known as the “Insurers’ Guarantee Fund”.(2) There shall be paid into the Guarantee Fund:(a) the contributions required by section 228 or the regulations to be paid by insurers,(a1) any amount directed to be paid into the Guarantee Fund out of the Insurance Fund under section 228,(b) all income accruing from the investment or re-investment of money in the Guarantee Fund or otherwise accruing to the Guarantee Fund,(c) any amounts received by the Authority in the exercise of the rights, or the discharge of the obligations, referred to in section 231 (2) or (3),(d) (Repealed)(e) any amounts payable to the Authority pursuant to section 235, and(f) any amounts authorised by the regulations to be paid into the Guarantee Fund from the funds of the Authority, and(g) amounts paid into the Guarantee Fund under section 7 of the Safety, Return to Work and Support Board Act 2012.(3) There shall be paid out of the Guarantee Fund such amounts as may be authorised by this Division, any other Act or the regulations to be paid out of that Fund.(3A) Money in the Guarantee Fund is also authorised to be made available for investment as provided by section 7 of the Safety, Return to Work and Support Board Act 2012.(4) The Guarantee Fund shall, subject to this Act, be under the direction, control and management of the Authority.(5) Subject to such directions, if any, as may be given from time to time by the Treasurer, the Authority may invest and re-invest or otherwise use or employ the Guarantee Fund in such investments as may be determined from time to time by the Authority, and any such investment may at any time be realised, hypothecated or otherwise dealt with or disposed of in whole or in part by the Authority.
228 Contributions to Guarantee Fund
(cf former s 30R)
(1) The Authority may, in respect of any financial year prescribed by the regulations, determine the amount to be contributed to the Guarantee Fund in respect of that year, being an amount which the Authority considers is necessary:(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insurers that were, before the commencement of Schedule 3 (3) to the Workers Compensation (Benefits) Amendment Act 1991, declared under section 226 to be insolvent insurers, and(b) to provide for the payment of any other amounts to be paid under this Division from the Guarantee Fund during that financial year which directly or indirectly relate to insurers that were, before that commencement, declared under that section to be insolvent.(2) Where the Authority determines an amount under subsection (1) in respect of a financial year prescribed for the purposes of that subsection, each insurer (other than a former licensed insurer) shall pay to the Authority for payment into the Guarantee Fund an appropriate contribution calculated in accordance with the following formula:
where:A is the amount which the insurer is required by or under this Act to contribute to the WorkCover Authority Fund in respect of that financial year,
B is the total amount required by or under this Act to be contributed by all insurers (other than former licensed insurers) to the WorkCover Authority Fund in respect of that financial year, and
C is the amount determined pursuant to subsection (1) in respect of that financial year.
(2A) The Authority may, in respect of any financial year specified by the regulations, determine the amount to be contributed to the Guarantee Fund in respect of that year, being an amount which the Authority considers is necessary:(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insurers that were, after the commencement of Schedule 3 (3) to the Workers Compensation (Benefits) Amendment Act 1991, declared under section 226 to be insolvent insurers, and(b) to provide for the payment of any other amounts to be paid under this Division from the Guarantee Fund during that financial year (not being amounts which directly or indirectly relate to insurers that were, before that commencement, declared under that section to be insolvent insurers).(2B) Where the Authority determines an amount under subsection (2A) in respect of a financial year prescribed for the purposes of that subsection, each insurer (other than a self-insurer or a former licensed insurer) shall pay to the Authority for payment into the Guarantee Fund an appropriate contribution calculated in accordance with the following formula:
where:A is the amount which the insurer is required by or under this Act to contribute to the WorkCover Authority Fund in respect of that financial year,
B is the total amount required by or under this Act to be contributed by all insurers (other than self-insurers and former licensed insurers) to the WorkCover Authority Fund in respect of that financial year,
C is the amount determined pursuant to subsection (2A) in respect of that financial year.
(2C) Where the Authority so directs, the amount determined by the Authority under subsection (1) or (2A) is to be paid into the Guarantee Fund out of the Insurance Fund, instead of being paid by insurers under subsection (2) or (2B).(3) A contribution is payable at such times and in respect of such periods as may be prescribed.(4) If a contribution is not paid within the time specified by the Authority in a notice to an insurer requiring the insurer to pay the contribution:(a) the insurer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and(b) the contribution, together with a late payment fee calculated at the rate of 15 per cent of the contribution per annum compounded quarterly (or, where another rate is prescribed, that other rate), may be recovered by the Authority as a debt in any court of competent jurisdiction.(5) In any proceedings under this section, a certificate executed by the Authority as to the amount of the appropriate contribution payable, under this section, by the insurer, and as to the time within which the contribution was required to be paid, is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the facts stated in the certificate.
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g5.gif)
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g6.gif)
229 Liquidator to notify Authority of claims
(cf former s 30S)
The liquidator of an insolvent insurer shall, on receiving any claim relating to any policy of insurance issued by the insolvent insurer, forward the claim to the Authority.Maximum penalty: 20 penalty units.
230 Delivery of documents etc to Authority
(cf former s 30T)
The liquidator of an insolvent insurer shall, whenever requested to do so by the Authority:(a) deliver to the Authority all documents relating to policies of insurance issued by the insolvent insurer and all claims, judgments or awards made in respect of any such policies in the liquidator’s possession, and(b) supply to the Authority all information in the liquidator’s possession relating to any such policies or any such claims, judgments or awards.Maximum penalty: 20 penalty units.
231 Appointment of Authority as agent and attorney of employer and worker
(cf former s 30U)
(1) The Authority is by this section appointed the agent and attorney of an employer and a worker insured under a policy of insurance issued by an insolvent insurer.(2) As agent and attorney of such an employer, the Authority may exercise the rights and discharge the obligations of the employer:(a) for the purpose of dealing with and finalising any claim against which the employer is indemnified under the policy of insurance,(b) for the purpose of satisfying any such claim or any judgment or award against which the employer is indemnified under the policy of insurance, and(c) for any other purpose prescribed by the regulations.(3) As agent and attorney of such an employer or a worker, the Authority may exercise the rights of the employer or worker in connection with the policy of insurance:(a) for the purpose of proving in the winding up of the insolvent insurer and receiving any dividends or other money payable to the employer or worker in the winding up,(b) for the purpose of recovering any money which the employer or worker is entitled to recover under section 151Z of this Act or section 64 of the former Act,(c) for the purpose of recovering any money which the employer or worker is entitled under the policy of insurance to recover from the person who issued the policy, being a policy referred to in paragraph (b) of the definition of policy of insurance issued by an insolvent insurer in section 225, and(d) for any other purpose prescribed by the regulations.(4) The Authority may exercise rights and discharge obligations as agent in the name of the employer or worker concerned, or in its own name.(5) All rights vested in an insurer or insolvent insurer and all obligations imposed on an insurer or insolvent insurer, being rights or obligations:(a) arising from or relating to a policy of insurance issued by an insolvent insurer to an employer, and(b) which may or shall be exercised or discharged for the purpose of:are vested in or imposed on the employer.(i) dealing with and finalising any claim against which the employer is indemnified under the policy, or(ii) satisfying any claim, judgment or award, against which the employer is indemnified under the policy,(6) Subsection (5) shall not be construed so as to vest in or impose on an employer, or to affect in any other way:(a) a right of an insurer or insolvent insurer to be indemnified by a reinsurer or an obligation of an insurer or insolvent insurer to indemnify an employer, or(b) any other prescribed right or obligation.(7) If the Authority is, under this section, empowered to exercise any rights, or to discharge any obligations, of an employer or a worker as agent and attorney, the employer or worker is not entitled, without the consent of the Authority, to exercise those rights or discharge those obligations.(8) The appointment effected by this section may be revoked only by an Act.
232 Payments to employer or liquidator
(cf former s 30V)
(1) Where an employer insured under a policy of insurance issued by an insolvent insurer has satisfied (whether before or after the insurer became an insolvent insurer for the purposes of this Division or before or after the commencement of this Division) any claim, judgment or award in respect of which the employer has not been indemnified under that policy, the Authority, as manager of the Guarantee Fund, may pay from the Guarantee Fund to the employer an amount equal to the whole or any part of the amount paid by the employer in satisfaction of the claim, judgment or award.(2) Where the liquidator of an insolvent insurer has satisfied (whether before or after the insurer became an insolvent insurer for the purposes of this Division or before or after the commencement of this Division) any claim, judgment or award in respect of which an employer is entitled to be indemnified under a policy of insurance issued by the insolvent insurer, the Authority, as manager of the Guarantee Fund, may pay from the Guarantee Fund to the liquidator an amount equal to the whole or any part of the amount paid by the liquidator in satisfaction of the claim, judgment or award.(3) Where:(a) a payment is made under subsection (1) to an employer in respect of a claim, judgment or award, the Authority shall be deemed, to the extent of the payment, to have satisfied the claim, judgment or award as agent and attorney of the employer, or(b) a payment is made under subsection (2) to the liquidator of an insolvent insurer in respect of a claim by or on behalf of any person or a judgment or award for the benefit of any person, the Authority shall be deemed, to the extent of the payment, to have satisfied the claim, judgment or award as agent and attorney of the employer of the person in respect of whom the payment is made.(4) The powers conferred by subsections (1) and (2) are exercisable at the absolute discretion of the Authority and neither those subsections operate nor the exercise of any of those powers operates so as to confer, directly or indirectly, any right on any person to whom a payment is or may be made under those subsections or on any other person.
234 Application of Guarantee Fund
(cf former s 30X)
(1) Out of the Guarantee Fund, the Authority as manager of that Fund:(a) shall pay the amount of any claim, judgment or award arising from or relating to any policy of insurance issued by an insolvent insurer, being a claim, judgment or award that it proposes to satisfy as agent and attorney of an employer, and any other amounts required by this Division to be paid from that Fund, and(b) is entitled:(i) to be paid the costs of administration of the Guarantee Fund (including any legal or other costs connected with the declaration of an insurer as an insolvent insurer), and(ii) to be indemnified against all payments made by it and all costs and expenses that it may incur in or in connection with the exercise of its functions under this Division.(2) Where a payment is made by the Authority as agent and attorney of an employer, being a payment authorised by this Division, the Authority shall not be entitled to recover the amount of that payment from the employer.
235 Recovery of amounts under contracts or arrangements for reinsurance
(cf former s 30Y)
To the extent that any amounts are paid out of the Guarantee Fund in respect of a claim, judgment or award pursuant to section 234 (including the costs of the Authority), the Authority shall, where an insolvent insurer (if it had provided indemnity to that extent under a policy of insurance) would have been entitled to recover any sum under a contract or arrangement for reinsurance, be entitled to the benefit of and may exercise the rights and powers of the insolvent insurer under that contract or arrangement so as to enable the Authority to recover from the reinsurer and pay into the Guarantee Fund the amount due under that contract or arrangement.
236 Payments of workers compensation when insolvent insurer dissolved
(cf former s 30Z)
(1) When an insolvent insurer has been dissolved, the payments of compensation under judgments or awards relating to policies of insurance issued by the insolvent insurer which would, but for the dissolution taking place, be payable by the insolvent insurer shall continue and be paid out of the Guarantee Fund by the Authority.(2) When an insolvent insurer has been dissolved, a person who would have had, but for the dissolution of the insolvent insurer, an entitlement to payment of any amount arising from or relating to any policy of insurance issued by the insolvent insurer (being a policy in respect of which the insolvent insurer is the insurer) shall be entitled to payment of that amount out of the Guarantee Fund.(3) A person referred to in subsection (2) may make a claim against the Authority, as manager of the Guarantee Fund, in respect of an entitlement to payment of an amount under that subsection.(4) The Authority, as manager of the Guarantee Fund, is entitled to deal with and finalise a claim made under subsection (3) in relation to a policy of insurance issued by an insolvent insurer to the same extent as it would have been entitled to do so if the insolvent insurer had not been dissolved.
237 Inspection of documents etc by person authorised by Minister
(cf former s 30ZA)
The liquidator of an insolvent insurer shall, whenever requested to do so by a person authorised by the Minister, make any documents relating to policies of insurance issued by the insolvent insurer and any claims, judgments or awards made in respect of any such policies in the liquidator’s possession available for inspection by that person.Maximum penalty: 20 penalty units.
238 Authority may take certain legal proceedings
(cf former s 30ZB)
(1) If:(a) the liquidator of an insolvent insurer applies to any court for directions in relation to any particular matter arising under the winding up,(b) the exercise by the liquidator of an insolvent insurer of any of the liquidator’s functions, whether under this Division or not, is challenged, reviewed or called into question in proceedings before any court, or(c) any other matter that concerns or may affect the operation of this Division is raised in proceedings before any court,the Authority may intervene at any stage of the proceedings before that court, by counsel, solicitor or agent, and shall thereupon become a party to, and shall have all the rights of a party to, those proceedings before that court, including the right to appeal against any order, judgment or direction of the court.(2) In any case in which the Attorney General might take proceedings on the relation or on behalf or for the benefit of a person who is (or who would but for the dissolution of the insolvent insurer be) entitled, under a policy of insurance issued by an insolvent insurer, to be indemnified against a claim, judgment or award arising from or relating to the policy, being proceedings for or with respect to enforcing or securing the observance of any provision made by or under this Division, any Act or any rule of law, the Authority shall be deemed to represent sufficiently the interests of the public and may take the proceedings in its own name.(3) The Authority is entitled to be paid, out of the Guarantee Fund, all the costs and expenses incurred by the Authority in exercising the powers conferred by this section.
(cf former s 30ZC)
The regulations may make provision for or with respect to:(a) requiring insurers (including former licensed insurers) to make contributions or further contributions to the Guarantee Fund,(b) the manner and method of determining any such contributions or further contributions,(c) varying in specified circumstances the periods with respect to which contributions are to be determined, or the method by which contributions are to be calculated, under section 228,(d) the payment, and proceedings for the recovery, of contributions, and(e) the circumstances and the manner in which contributions of insurers and other amounts standing to the credit of the Guarantee Fund may be repaid and otherwise distributed to insurers and the liquidators of insolvent insurers.
Division 8 Terrorism Re-insurance Fund
In this Division:act of terrorism—see section 239AB.
insurer includes a licensed insurer, a self-insurer and a specialised insurer.
threshold amount—see section 239AC.
TRF means the Terrorism Re-insurance Fund (if any) established under section 239AE.
239AB Meaning of “act of terrorism”
(1) An act of terrorism is an act that, having regard to the nature of the act and the context in which the act was done, it is reasonable to characterise as an act of terrorism.(2) Any lawful activity or any industrial action cannot be characterised as an act of terrorism for the purposes of this Act. An act may be so characterised only if it:(a) causes or threatens to cause death, personal injury or damage to property, and(b) is designed to influence a government or to intimidate the public or a section of the public, and(c) is carried out for the purpose of advancing a political, religious, ideological, ethnic or similar cause.
239AC Meaning and application of “threshold amount”
(1) The threshold amount is the amount of $1 million.(2) The threshold amount applies to the total amount of claims referred to in this Division in respect of an act of terrorism specified in a declaration under section 239AD, and not to the amount of claims in respect of that act that are made against each individual insurer.(3) The threshold amount is to be apportioned among the insurers who have a liability in respect of a claim referred to in this Division.Note. See section 239AH (6) for the insurer’s proportion of the threshold amount.
239AD Minister may make declaration as to significant terrorism-related liabilities
(1) The Minister may, by order published in the Gazette, declare that an act of terrorism specified in the declaration has given rise to significant terrorism-related liabilities.(2) The Minister may not make such a declaration unless:(a) an insurer has requested the Minister to do so, and(b) the Minister is satisfied that:(i) an act of terrorism occurred after 4pm on 30 June 2002 or at any time on any day after that date, and(ii) the act of terrorism has given rise to liabilities (whether liabilities of one or more self-insurers, or liabilities under policies of insurance issued or renewed by one or more insurers that are not self-insurers, or both) for payment of amounts that, in total, exceed the threshold amount.
239AE Terrorism Re-insurance Fund
(1) On the first occasion (if any) that a declaration is made under section 239AD, there is to be established a fund to be known as the “Terrorism Re-insurance Fund” (or TRF).(2) The following are to be paid into the TRF:(a) all contributions required under this Division or the regulations to be paid by insurers,(b) income from the investment of money in the TRF,(c) any amounts authorised by the regulations to be paid into the TRF from the funds of the Authority,(d) all money recovered by the Authority pursuant to section 239AJ,(d1) amounts paid into the TRF under section 7 of the Safety, Return to Work and Support Board Act 2012,(e) any other amounts that may lawfully be paid into the TRF.(3) The following are to be paid out of the TRF:(a) the costs of administration of the TRF,(b) such other payments as may be authorised or required by this Division or the regulations to be so paid.(4) The TRF is, subject to this Act, under the direction, control and management of the Authority.(5) The Authority may invest and re-invest money in the TRF in such investments as may be determined from time to time by the Authority. Any such investment may at any time be realised, hypothecated or otherwise dealt with or disposed of in whole or in part by the Authority.(6) Money in the TRF is also authorised to be made available for investment as provided by section 7 of the Safety, Return to Work and Support Board Act 2012.
239AF Insurers to provide Authority with information
(1) If an insurer requests the Minister to make a declaration under section 239AD, the Authority may from time to time, by notice in writing to any insurer (specifying the act in respect of which the declaration is sought), require the insurer to provide the Authority with information in relation to that act in accordance with this section.(2) The information is to be provided, in writing, no later than 21 days after the notice is served on the insurer.(3) The following information is to be provided:(a) a statement as to whether the insurer has, as an insurer, incurred any liability for payment as a result of the act specified in the notice,(b) if the insurer has incurred such a liability:(i) details of any claims received by the insurer in respect of the liability,(ii) details of any amount paid in respect of those claims,(iii) an estimate (calculated in accordance with the method specified in the notice) of any further amount that the insurer will be required to pay (in respect of both claims already received by the insurer and anticipated claims),(iv) details of any contracts or arrangements for re-insurance that are in force to the benefit of the insurer in connection with any such liability,(c) such other information as may be prescribed by the regulations.(4) If the insurer subsequently has reason to revise any information provided under this section, the insurer is required to furnish the Authority with the revised information in accordance with the WorkCover Guidelines (which may make provision with respect to the furnishing of that information).(5) An insurer who fails to comply with a requirement under this section is guilty of an offence.Maximum penalty: 100 penalty units.
239AG Contributions to Terrorism Re-insurance Fund
(1) On each occasion that a declaration is made under section 239AD, the Authority is to determine, in accordance with this section:(a) the total amount to be paid to the TRF, and(b) the amount to be contributed by each insurer.(2) The total amount to be paid to the TRF is the amount that the Authority estimates will be necessary to satisfy all claims (both against self-insurers and under policies of insurance issued or renewed by insurers that are not self-insurers) in respect of the act of terrorism specified in the declaration, less the greater of the following amounts:(a) the total of the maximum amounts payable to insurers under contracts or arrangements for re-insurance in respect of liability for claims arising from the act of terrorism,(b) the threshold amount.(3) The Authority is to determine the amount to be paid to the TRF by an insurer in accordance with the following formula:
where:A is the amount of wages (within the meaning of the insurance premiums order relating to the financial year in which the act of terrorism occurred) by reference to which the insurer’s premium (or, if the insurer is a self-insurer, the insurer’s deemed premium income) for that financial year was calculated.
B is the total amount of wages (as referred to in A above) of all insurers.
C is the amount determined under subsection (1) (a).
(4) The Authority is to give each insurer written notice of the amount determined under this section in respect of the insurer. The notice must specify the date or dates (the date being (or, if more than one date is specified, the first date being) a date not less than 15 days after the notice is given) by which the insurer must pay the amount or specified instalments of the amount (or, if the notice requires payment of a lesser amount in accordance with subsection (5), that lesser amount or specified instalments of that lesser amount) to the Authority.(5) The notice may (but need not) offset in accordance with section 239AI the amount (if any) to be reimbursed to the insurer under section 239AH and reduce the amount to be paid by the insurer under this section accordingly.(6) If the Authority considers it necessary to do so (because, for example, of the discovery of additional liabilities of insurers arising from the act of terrorism concerned or because the amount estimated to be necessary to satisfy all claims was insufficient to do so), the Authority may make further determinations, in accordance with this section, in respect of the same act of terrorism. Subsections (4) and (5) apply in relation to any such further determination under subsection (3) in the same way as they apply in relation to the original determination under that subsection.(7) If an amount is not paid in accordance with a notice under this section (regardless of whether the insurer concerned is to receive any reimbursement under section 239AH):(a) the Authority may recover the amount (together with interest at the prescribed rate) as a debt in a court of competent jurisdiction, and(b) the insurer concerned is guilty of an offence.Maximum penalty: 100 penalty units.
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g11.gif)
239AH Partial reimbursement of insurers from Terrorism Re-insurance Fund
(1) If a declaration has been made under section 239AD, an insurer may apply to the Authority for reimbursement of part of the amount paid by the insurer in respect of claims arising from the act of terrorism specified in the declaration.(2) The Authority may, in accordance with this section, reimburse an insurer who makes an application under subsection (1).(3) Any such reimbursement is to be made out of the TRF.(4) The Authority may reimburse an insurer only if it is satisfied that:(a) the insurer has made the payments specified in the insurer’s application for reimbursement, and(b) the payments were made in respect of claims (whether because the insurer is a self-insurer or under policies of insurance issued or renewed by the insurer) arising from the act of terrorism specified in the declaration under section 239AD, and(c) the amount to be reimbursed is no more than the total amount paid by the insurer in respect of those claims less the amount of the insurer’s excess.(5) The Authority may:(a) make an interim calculation of an insurer’s proportion of the threshold amount, and(b) make an interim reimbursement (or reimbursements) to an insurer,on the basis of initial information provided by the insurer to the Authority under section 239AF, and may make further calculations or reimbursements (or both) on the basis of any further or revised information provided under that section.(6) In this section:insurer’s excess means the greater of the following:
(a) the insurer’s proportion of the threshold amount,(b) the maximum amount that is payable to the insurer under any contract or arrangement for re-insurance in respect of its liability for claims arising from the act of terrorism.insurer’s proportion of the threshold amount means the amount calculated in accordance with the following formula:
where:X is the amount of the insurer’s liability in respect of claims arising from the act of terrorism.
Y is the total amount of liability of all insurers in respect of those claims.
Z is the threshold amount.
/Qj0ays9QCA3cmVemk%2FJj8w%3D%3D_g12.gif)
(1) The Authority may apply all or part of the amount to be reimbursed to an insurer under section 239AH so as to reduce the amount of any money due from and unpaid by the insurer under section 239AG (including money by way of interest calculated on the amount originally demanded under that section).(2) The Authority is to make any necessary adjustments consequent on the application of a reimbursement (or part of a reimbursement) under this section and is to give the insurer written notice of:(a) the way in which the reimbursement (or part of the reimbursement) has been applied, and(b) any adjustments that have been made, and(c) the amount (if any) that remains due from the insurer under section 239AG after the application of the reimbursement (or part of the reimbursement).
(1) On reimbursing an insurer under section 239AH in relation to a claim paid by the insurer, the Authority is subrogated, to the extent of the amount of the reimbursement, to all the rights and remedies of that insurer against any other person in respect of recovery of the money paid by the insurer in relation to the claim.(2) A certificate given by the Chief Executive Officer certifying that a specified amount has been reimbursed, under section 239AH, to a specified insurer in relation to specified payments made by the insurer is evidence of the matter certified.(3) The Authority may exercise the rights and remedies to which the Authority is subrogated under this section in the name of the Authority or in the name of the insurer concerned.
(1) The regulations may make provision for or with respect to the TRF.(2) In particular, the regulations may make provision for or with respect to the following:(a) requiring insurers to make contributions and further contributions to the TRF,(b) the manner and method of determining any such contributions and further contributions,(c) the payment, and proceedings for the recovery, of contributions and further contributions to the TRF,(d) the making of applications for reimbursement from the TRF, including the information to be provided to the Authority in connection with any such application,(e) the circumstances and the manner in which contributions of insurers, and other amounts standing to the credit of the TRF, may be distributed to insurers otherwise than by way of reimbursement under section 239AH.(3) The regulations may exempt from the operation of all or any of the provisions of this Division any specified insurer or class of insurers in such circumstances (if any), and subject to such conditions (if any), as may be specified in the regulations.
(1) The Minister is to conduct a review of this Division to determine whether the policy objectives of the Division remain valid and whether the provisions of the Division remain appropriate for securing those objectives.(2) The review is to be conducted as soon as possible after 30 June 2004, and a report on the outcome of the review is to be tabled in each House of Parliament as soon as practicable after the completion of the review.