Division 1ADivision 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.