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Legislative Assembly for the ACT: 2003 Week 10 Hansard (25 September) . . Page.. 3673 ..

Medical certificates (continuing):

Repayment of statutory lump sums

Under the ACT workers compensation scheme, if a worker can prove that their employer was negligent, the worker can obtain common law damages against their employer. However, as the ACT workers compensation scheme is also a no-fault scheme, if a worker has a permanent impairment they are entitled to make a claim for statutory lump sum compensation.

The legislation does not require an injured worker to make an election or decide which type of action they would like to pursue. Thus in the ACT the worker may both make a claim under the statutory scheme and take an action at common law. However, a worker is barred from making a statutory claim if they have already received compensation for the injury. Also, if the worker first receives a statutory lump sum and then a common law settlement or award, they must repay to their employer all of the statutory payments they have received.

The changes proposed in the bill will require that the worker, in addition to repaying the statutory payments, also repay the party to party legal costs associated with a claim for statutory lump sum payments. The proposed amendment is designed to reduce overall costs to the workers compensation scheme by limiting the possibility that employers and insurers would be required to pay for two sets of legal costs for the one injury. However, this would be subject to a general rider that a worker would not be required to repay more than they received in settlement of the matter.

To make the potential costs of making multiple claims more transparent, the bill also includes a requirement that the worker's legal representative and the insurer must inform a worker of the requirement to repay statutory lump sum payments and associated legal costs if they are successful at common law.

Criminal code

The bill also includes amendments to implement the criminal law reforms contained in the Criminal Code 2002. All amending legislation introduced after 1 January 2003 must be compliant with the new Criminal Code provisions.

As some of the policy amendments proposed by this bill affected offence provisions, it was necessary to restructure those provisions to make them compliant with the Criminal Code. Rather than amending some offences and leaving out other neighbouring offences in the act unamended, I decided to put forward amendments to make the entire Workers Compensation Act and regulations compliant with the Criminal Code. This is the first act that has been so amended.

The Criminal Code amendments are contained in schedule 2 to the bill. The amendments identify which offences are strict liability in nature and clearly identify mental fault elements for those offences that are not strict liability in nature. The fault elements for an 'at fault offence' may be intention, knowledge, recklessness or negligence. These are set out in descending order of culpability. Intention is regarded as more blameworthy than negligence and therefore offences with a fault element of intention have higher penalties than similar offences with a fault element of negligence.

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