The National Injury Insurance Scheme (Queensland) Bill 2016, was assented to on the 14 June 2016. The bill was constructed as follows:
- Chapters 2 – 10, Part 1 enacts National Injury Insurance Scheme (Queensland) Act 2016
- Chapter 10, Part 2, Division 1 amends Civil Liability Act 2003
- Chapter 10, Part 2, Division 2 amends Motor Accident Insurance Act 1994
Chapter 1 Preliminary
Part 1 Introduction
- Sections 1 – 2 commenced on date of assent 14 June 2016.
- Chapter 4, part 2 and chapter 10, part 1 and 2, division 2, subdivision 3 to commence on date to be fixed by proclamation (not yet proclaimed into force).
- Remaining provisions to commence on 1 July 2016.
Part 2 Purpose and Application
The purpose of the legislation is to ensure that people who suffer serious personal injuries as a result of motor vehicle accidents in Queensland receive necessary and reasonable treatment, care and support, regardless of fault. This differs from CTP insurance, as CTP insurance is not available to an injured person who is found to be at fault, or where no fault can be established for the accident. Additionally, the previous legislation only applied to motor vehicles that were required to be registered in Queensland. This Bill ensures the Act applies to a broader range of vehicles (e.g. interstate vehicles which are being driven in Queensland).
The application of the Act is limited to serious personal injuries as a result of driving a prescribed vehicle, a collision, an action to avoid a collision, or a vehicle running out of control. The accident must happen in Queensland, on or after 1 July 2016. The act is not applicable to accidents which related to uninsured motor vehicles, agriculture vehicles (tractor, backhoe, etc), construction vehicles (forklift, crane, etc), trains, trams, amphibious vehicles, or a motor vehicle prescribed by regulation, unless on a road or in a public place.
Part 3 Interpretation
Clause 7 defines a prescribed vehicle. The definition is intended to cover motor vehicles and trailers that are currently covered by a CTP insurance policy, regardless of whether such a policy is issued in Queensland or interstate.
Chapter 2 National injury insurance scheme, Queensland
Part 1 Preliminary – Eligibility
A person is eligible to participate in the scheme if the person has suffered a serious personal injury to which the Act applies and which meets the eligibility criteria. A person is not eligible if they have been awarded damages by judgement or settlement, or if they suffered a pre-existing injury or condition which has not been made worse by the accident.
Part 2 Application to participate in scheme
Applications to participate in the scheme must be made within one year of the accident. However, late applications can be accepted. Applications cannot be made where a previous application was refused or previous participation in the scheme has ended unless there is new information regarding the injury or condition of the claimant.
Part 3 Assessing needs
The agency must assess the participant’s treatment, care and support needs that result from the participant’s injury and provide a support plan. A participant may make a written service request asking the agency to fund a particular treatment, care or support for a particular period.
Part 4 Payments
Payments for the treatment, care and support can be made in various ways. Funding agreements may be made between a person and the agency to cover particular treatment expenses incurred by the person. Alternatively, a person can make a payment request for cover expenses as they are incurred.
The agency can also contribute towards the insurer’s liability for damages in particular circumstances. However, it should be noted that clause 42 and 43 could operate to remove the participant’s right to common law damages. Particularly, clause 43 allows the agency to make an application to the court for an order preventing the participant from being awarded treatment, care and support damages under a final judgement or settlement.
Part 5 Reviewing participation
Agency may review of the participation of an interim participant at any time. The purpose of the review is to decide whether the participant is still eligible for the scheme. If the agency does not undertake review before the participation period ends, the agency is taken to have decided that the participant is not longer eligible to participate in the scheme.
Part 6 Participants absent from Australia
Participants planning to leave Australia must notify agency at least 1 month before leaving. If a participant has left Australia for more than 3 consecutive months, the agency may suspend participant’s participation in the scheme.
Chapter 3 National injury insurance agency, Queensland
This chapter establishes the national injury insurance agency, including details of the board, the agency’s CEO, and reporting and accountability requirements.
Chapter 4 Funding of scheme
Part 1 establishes the national injury insurance scheme fund, Queensland. Clause 96 provides for the recovery of ‘unearned premiums’ from insurers. From 1 July 2015 to the commencement of the fund levy, insurers will have been collecting premiums in relation to risks covered and funded by the scheme. This provision facilitates the recovery of this one-off windfall sum from the insurers.
Part 2 provides for the calculation of the amount that is required to be contributed to the fund.
Chapter 5 Role of the commission
This chapter details the functions of the commission in relation to the scheme.
Chapter 6 Reviews
This chapter provides for both internal and external review processes. External reviews include reviews by a medical tribunal (for ‘medical matters’) and QCAT. Clause 105 provides that an internal review must be applied for before a person may apply to QCAT for review of the decision.
Chapter 7 Information exchange
Provides for situations in which the agency can give out personal information of participants.
Chapter 8 Miscellaneous
Part 1 deals with offences against the agency such as fraud.
Part 2 provides for the treasurers powers of direction and referral in relation to the Act.
Chapter 9 Transitional provisions
This chapter defines the term ‘insurance commissioner’, and provides for the power to make a regulation to set the levy for the 2016-2017 financial year.
Chapter 10 Part 2 Amendment of legislation
Division 1 Amendment of Civil Liability Act 2003:
Clause 149 inserts new Chapter 3, part 2A into the Civil Liability Act 2003 which consists of new sections 52A, 52B, and 52C.
- New section 52A inserts new definitions for ‘insurance agency’; ‘insurance scheme’; ‘motor accident’; ‘National Injury Act’; and ‘serious personal injury’. Clause 150 also inserts these new definitions into Schedule 2.
- New section 52B applies to the awarding of damages in relation to a serious personal injury if the person suffering the injury is, or was, a participant in the scheme. A court cannot award damages in relation to a person’s treatment, care and support needs for the period that the person was a participant in the scheme.
- New section 52C applies to a claim for personal injury damages against an insurer. If a court awards treatment, care and support damages, in assessing such damages, the court must not take into account any contributory negligence of the person where the court decides the person is less than 25% contributorily negligent.
Division 2 Amendments of Motor Accident Insurance Act 1994:
Subdivision 2 Amendments commencing 1 July 2016:
- Clause 152 inserts new definitions into section 4:
- Eligible person means a person who, under the National Injury Act, section 12, is eligible to participate in the injury insurance scheme.
- Injury insurance scheme means the national injury insurance scheme, Queensland established under the National Injury Act, chapter 2.
- Insurance agency means the National Injury Insurance Agency, Queensland established under the National Injury Act.
- National Injury Act means the National Injury Insurance Scheme (Queensland) Act 2016
- Participant, in the injury insurance scheme, see the National Injury Act, section 14(1).
- Serious personal injury see the National Injury Act, schedule 1.
- Treatment, care and support needs, of a person, see the National Injury Act, section 8.
- Clause 157 amends section 37 to provide that agency must be authorised to exchange information about claimant by accident claim notice.
- Clause 159 amends section 39 require and insurer to confirm in its response to a claim notice whether it will be able to meet the reasonable costs of the claimant’s rehabilitation for the period the claimant is not a participant in the scheme.
- Clause 161 and 162 amend sections 42 and 51 of Act, which provide that an insurer does not have to pay the medical expenses or provide rehabilitation services to a claimant who is a participant in the scheme.
- Clause 163 inserts new part 4, division 8 and division 9 in Act (ss 61A & 61B). Section 61A details the claims process if an insurance company is liable under s 42 of the National Injury Act to contribute to a claim. Section 61B provides for when an insurer must give insurance agency written a notice of a claim when the claim is made against an insurer for personal injury.
Subdivision 3 Amendments commencing by proclamation (not yet proclaimed into force):
- Clause 172 amends section 12 of the Act, which regards insurance premiums. The amendment provides for the collection of the injury insurance scheme levy as part of an insurance premium. The amendment also enables the statutory insurance scheme levy to cover the estimated costs of the commission of performing its function under the scheme.
- Clause 175 amends section 15, ensuring that the scheme is considered when the insurance commission undertakes its review into the affordability of CTP insurance.
Otherwise, I draw your attention to The Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016 which proposes changes to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act).
David Cormack – Brisbane Barrister & Mediator