Page 269 - Week 01 - Thursday, 9 February 2023
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penalty provisions will be subject to a public interest test, with the commission also needing to consider other criteria about the nature and impact of the breach before imposing a penalty.
Additional provisions will also enable the commission to direct licensed insurers to act—for example, reviewing or correcting their processes if the commission believes on reasonable grounds that an insurer is contravening or likely to contravene the act. A general power will allow a direction to be given to rectify or avoid a contravention or to otherwise comply with the legislation.
A specific direction can also require a remediation plan to be given to and approved by the commission. A remediation plan may be required where further contraventions are likely to occur, unless the insurer takes steps to minimise the risk of a contravention happening. This does not mean, however, that the commission can change the outcome of a specific decision of the insurer on a defined benefits application or in relation to a motor accident claim. There are formal mechanisms already in place for an injured person to dispute an insurer’s decision.
The notification of reportable conduct is modelled on a similar requirement under the Australian financial services licensing regime. This provides a formal pathway for insurers to report anything that they identify through their own compliance monitoring or business operations that causes or is likely to cause a significant contravention of the legislation. Guidelines will set out factors for an insurer to consider when deciding whether a notification needs to be made. Additional licence conditions are proposed to support these new requirements.
The Motor Accident Injuries Commission recommended amendments to the MAI Act following the first two years of operation of the scheme. Many are of a technical nature. The amendments address issues such as the alignment of rounding rules for benefit calculations; clarifying when multiple convictions for driving offences result in entitlements ending under the scheme; and correcting some cross-references in the act. The bill will also now permit the ACT Civil and Administrative Tribunal, in addition to the courts, to consider if the parties to a dispute have complied with the duty of good faith.
The quality of life benefit provisions are a key element of the scheme, especially for those more seriously injured with a permanent injury and seeking to proceed to common law. Amendments are being made to clarify the process for a quality of life benefit application and for obtaining a whole person impairment assessment. Clarity is also being given to time frames for responding to an offer for quality of life benefits and, in the event that a common-law claim is made, to ensure the offer is extended if quality of life damages are not subsequently awarded or paid.
The MAI Act provides for significant occupational impact assessments. These assessments provide an alternative pathway to common law for workers who receive long-term income support and have been unable to return to, or retrain for, suitable work due to their injuries. The MAI Commission engaged a rehabilitation consultant to advise on draft guidelines for significant occupational impact assessments. As a result of the consultant’s advice, amendments are being made to remove references to “health assessor” and “health practitioner”, as these terms limited who could conduct
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