Part 1 Preliminary

1 Short title

This Act may be cited as the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 .

2 Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3 Objects of Act

The objects of this Act are to –

(a) ensure the provision of fair and appropriate compensation, and the payment of certain expenses, in relation to the contraction by persons of asbestos-related diseases in the course of employment as workers in connection with this State; and

(b) provide for the prompt and effective resolution of applications under this Act for compensation or for the payment of certain expenses; and

(c) provide an effective and economical mechanism for resolving disputes relating to applications under this Act for compensation or for the payment of certain expenses; and

(d) make provision in relation to certain judgments and agreements relating to the contraction by persons of asbestos-related diseases in the course of employment as workers.

4 Application of Act to Crown

(1)  This Act binds the Crown, not only in right of Tasmania but also, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  Accordingly, this Act applies in respect of a worker employed by or on behalf of the Crown.

(3)  For the purposes of this Act, a police officer is to be taken to be employed by the Crown.

Part 2 Interpretative Provisions

Division 1 General

5 Interpretation

(1)  In this Act, unless the contrary intention appears –

accredited impairment assessor means a person who is an accredited medical practitioner under the Workers Rehabilitation and Compensation Act 1988 and who is authorised by his or her accreditation under that Act to perform impairment assessments;

AMA Guides has the same meaning as it has in the Workers Rehabilitation and Compensation Act 1988 ;

application for compensation means an application made under section 33(1) or (4) ;

approved means approved in writing by the Commissioner;

asbestos-related disease, in relation to a person, means a medical condition that is attributable to the person having been exposed to asbestos;

basic salary means –

(a) during the year beginning 1 January 2011, $696.85; and

(b) during any subsequent year beginning 1 January, the basic salary for the previous year as varied by the relevant percentage;

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021]

commencement day means the day on which section 29 comes into force;

Commissioner means the Asbestos Compensation Commissioner appointed under section 153 ;

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021]

compensation means compensation referred to in Part 7 or 8 ;

compensation units – see subsection (2) ;

contractor means a person who enters into a contract for the provision of services by the person otherwise than as a worker;

degree of impairment, in relation to a person, means the impairment of the person because of one or more asbestos-related diseases, assessed at a percentage of the whole person;

domestic workers compensation insurance policy means a policy of insurance that indemnifies the policyholder for liabilities under the Workers Rehabilitation and Compensation Act 1988 , or independently of that Act, in respect of domestic workers;

[Section 5 Subsection (1) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] employer means the person with whom a worker has entered into a contract of service or a training contract and includes –

(a) the Crown; and

(b) the employer of any person who is a member of a class of persons who are to be taken to be workers for the purposes of this Act;

Fund means the Asbestos Compensation Fund established under section 162(1) ;

insurer means a body corporate authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business;

levy means the levy from time to time determined under section 166(1) ;

licensed insurer means an insurer who holds a licence that is in force under Division 2 of Part IX of the Workers Rehabilitation and Compensation Act 1988 ;

medical evidence includes, but is not limited to including, X-rays, pathology results, lung function test results, spirometry test results and histopathological test results;

medical panel, in relation to a medical question, means the medical panel established, by the selection of members of the panel under section 51(1) , to determine the question;

medical practitioner register means the register established under section 50 ;

medical professional means –

(a) a medical panel; or

(b) a member of a medical panel; or

(c) an accredited impairment assessor to whom a medical question is referred under section 45 ; or

(d) a medical practitioner to whom a medical question is referred under this Act;

medical question – see section 8 ;

medical specialist, in relation to an asbestos-related disease, means a medical practitioner who specialises in such diseases or the field of medicine in relation to diseases of the part of the body in which the asbestos-related disease occurs;

member of the family, in relation to a person, means –

(a) a spouse of the person; or

(b) a person who has not attained the age of 22 years and who is –

(i) a natural child of the person; or

(ii) a child who has been adopted by the person; or

(iii) a stepchild of the person who is a member of the family for the purposes of this Act by virtue of section 99(2) ;

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021]

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021] member of the Tribunal means a member of the Tribunal under section 11 of the Tasmanian Civil and Administrative Tribunal Act 2020 ;

party, in relation to a proceeding before the Tribunal, means –

(a) the Commissioner; and

(b) any person, other than the Commissioner, who has referred to the Tribunal the matter to which the proceeding relates; and

(c) any person joined as a party in relation to the proceeding by virtue of section 127(4) or section 128(3) ;

person who has a compensable disease – see section 6 ;

policyholder means a person who is required under the Workers Rehabilitation and Compensation Act 1988 to maintain for the purposes of that Act a policy of insurance other than a domestic workers compensation insurance policy;

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021]

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021] Registrar has the same meaning as in the Tasmanian Civil and Administrative Tribunal Act 2020 ;

relevant employment period – see section 7 ;

relevant percentage, in respect of any year beginning 1 January, means the percentage difference in the average weekly ordinary full-time earnings of adults in Tasmania in the period between the May immediately before the start of that year and the immediately preceding May, as evidenced by statistics published by the Australian Statistician under the authority of the Census and Statistics Act 1905 of the Commonwealth;

self-insurer means a person who is a self-insurer for the purposes of the Workers Rehabilitation and Compensation Act 1988 ;

spouse means –

(a) in relation to a person who is living –

(i) a person to whom the person is married; and

(ii) if the person (whether or not he or she is married to a person) is in a significant relationship, within the meaning of the Relationships Act 2003 , with another person – that other person; or

(b) in relation to a person who is deceased –

(i) the person to whom the deceased person was married immediately before the death of the deceased person; and

(ii) if the deceased person (whether or not he or she was, at the time of his or her death, married to a person) was, immediately before his or her death, in a significant relationship, within the meaning of the Relationships Act 2003 , with another person – that other person;

State includes a Territory;

[Section 5 Subsection (1) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013]

[Section 5 Subsection (1) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] training contract has the same meaning as in the Training and Workforce Development Act 2013 ;

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021]

[Section 5 Subsection (1) amended by No. 18 of 2021, s. 27, Applied:05 Nov 2021] Tribunal means the Tasmanian Civil and Administrative Tribunal;

weekly payment, in relation to a person, means the weekly payment calculated in accordance with Division 3 of Part 7 ;

worker means –

(a) a worker within the meaning of section 12 ; and

(b) any person taken to be a worker for the purposes of this Act.

(2)  A reference in this Act to a number of compensation units is a reference to the amount obtained by multiplying the basic salary by that number.

(3)  For the purposes of this Act, the exercise and performance of the powers and duties of a local or other public authority is to be taken to be the carrying on by the authority of a trade or business.

6 When person has "compensable disease"

(1)  For the purposes of this Act, a person has a compensable disease if –

(a) the person has an asbestos-related disease; and

(b) the contraction by the person of the disease is reasonably attributable to exposure to asbestos in the course of the person's employment as a worker during a relevant employment period in which the person's employment is connected with this State.

(2)  A reference in this Act to a person who has a compensable disease includes a reference to a person who is deceased and who had, immediately before he or she died, a compensable disease.

7 Meaning of "relevant employment period"

(1)  In this Act, a reference to a relevant employment period in respect of a person is a reference to a continuous period of employment of that person as a worker by an employer of that person –

(a) beginning on the day on which the person is employed by that employer as a worker; and

(b) ending on the day on which the person ceases to be employed as a worker by that employer.

(2)  Despite subsection (1) , if –

(a) the relevant employment period in respect of a person, as determined in accordance with that subsection, includes –

(i) a period when the person is in another State for the purposes of that employment; and

(ii) a period when the person is in this State for the purposes of that employment for a continuous period of more than 6 months; and

(b) the person is, in the course of that employment, exposed in this State to asbestos during the period referred to in paragraph (a)(ii)  –

a reference, in relation to that person, to a relevant employment period in respect of that employment is a reference to the period referred to in paragraph (a)(ii) .

(3)  Subsection (4) applies to a person in respect of a relevant employment period if –

(a) the person is employed by an employer; and

(b) the employer sells, transfers, or restructures, the business in respect of which the person is employed; and

(c) the person becomes, immediately after the sale, transfer or restructure of the business, an employee of the person to whom the business is sold or transferred or who becomes the employer in respect of the business as restructured.

(4)  If this subsection applies to a person, the person is to be taken to be, for the purposes of this section, continuously employed as a worker by the employer referred to in subsection (3)(a) for the period –

(a) beginning on the day on which the person is employed as a worker by the employer referred to in subsection (3)(a) ; and

(b) ending on the day on which the person ceases to be employed as a worker by the employer referred to in subsection (3)(c) .

(5)  For the purposes of this section, if a person works for an employer on a casual or irregular basis as a worker, each period –

(a) beginning on the first day, of a period determined in accordance with this subsection, on which the person performs work as a worker in the course of employment by that employer; and

(b) ending on the day on which that period of employment as a worker on a casual or irregular basis ends –

is to be taken to be a continuous period of employment of the worker by the employer.

(6)  For the purposes of subsection (5) , a period of employment as a worker on a casual or irregular basis ends on the last day on which the person performs work in that employment before the beginning of a continuous period of 3 months in which the worker does not perform on any day work as a worker in the employment of that employer.

8 Meaning of "medical question"

For the purposes of this Act, a medical question in relation to a person means any of the following questions:

(a) whether the person has an asbestos-related disease;

(b) if the contraction by the person of an asbestos-related disease is reasonably attributable to exposure to asbestos in the course of the person's employment as a worker;

(c) if the person has an asbestos-related disease –

(i) whether or not the person is reasonably likely to die within 2 years from the date on which the question is determined; and

(ii) if the person is reasonably likely to die within 2 years from the date on which the question is determined, whether the disease is reasonably likely to be a significant factor contributing to the person's death;

(d) the degree of impairment or incapacity of the person;

(e) if the person has or had an asbestos-related disease, whether the person may recover from the disease or has so recovered;

(f) any other question, related to the health of the person, that is relevant to an application for compensation, a claim for expenses under this Act, or an application under section 74 , 76 or 79 , that relates to the person.

9 References to certificates as to "imminently fatal" and "non-imminently fatal" diseases

(1)  A reference in this Act to a medical certificate certifying that a person has a non-imminently fatal asbestos-related disease means a certificate, given by a medical specialist, certifying that the medical specialist has examined the person and is of the opinion –

(a) that the person has an asbestos-related disease; and

(b) that –

(i) the person is not reasonably likely to die within 2 years from the date on which the certificate is given; or

(ii) if the medical specialist is of the opinion that the person is reasonably likely to die within 2 years from the date on which the certificate is given, the asbestos-related disease is not reasonably likely to be a significant factor contributing to the person's death.

(2)  A reference in this Act to a medical certificate certifying that a person has an imminently fatal asbestos-related disease means a certificate, given by a medical specialist, certifying that the medical specialist has examined the person and is of the opinion that –

(a) the person has an asbestos-related disease; and

(b) the person is reasonably likely to die within 2 years from the date on which the certificate is given; and

(c) the disease is reasonably likely to be a significant factor contributing to the person's death.

10 References to application for compensation relating to person who has compensable disease

In this Act, a reference to an application for compensation in relation to a person who has a compensable disease is a reference to an application for compensation made by –

(a) the person who has a compensable disease or who claims in the application to have a compensable disease; or

(b) a member of the family of –

(i) a person who has a compensable disease; or

(ii) a person who, it is claimed in the application, has a compensable disease.

11 Meaning of "evidence of a person's occupational history"

(1)  In this section –

relevant exposure period, in relation to a person, means a period, during a relevant employment period, in which it is reasonably likely that the person was exposed to asbestos in the course of employment as a worker.

(2)  For the purposes of this Act, evidence of a person's occupational history means evidence of any of the following:

(a) the employment of the person in a workplace during a relevant employment period in which a relevant exposure period occurred;

(b) a relevant exposure period;

(c) the employment of the person in a workplace during a relevant exposure period;

(d) the type of work performed by the person at the workplace during a relevant exposure period;

(e) the product name of the asbestos to which it is alleged the person may have been exposed during a relevant exposure period.

(3)  Without limiting the evidence that may be provided in respect of a person's occupational history, the following are evidence of a person's occupational history:

(a) pay slips, group certificates, or other documents, evidencing employment of the person during a relevant employment period and a relevant exposure period;

(b) statements of witnesses in relation to –

(i) employment, as a worker, of the person at a workplace during a relevant employment period or a relevant exposure period; or

(ii) the possible exposure of the person to asbestos at that workplace while so employed during a relevant exposure period;

(c) evidence of the person being a member of a trade union during a relevant exposure period, or holding a licence, qualification or other authority to engage in a trade or occupation during a relevant exposure period;

(d) statutory declarations or affidavits, sworn by the person, or another person, as to employment by the first-mentioned person in an occupation during a relevant exposure period.

Division 2 When persons are, or are not, workers

12 When person is a worker

(1)  [Section 12 Subsection (1) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] For the purposes of this Act, a person is a worker if the person is engaged or works under a contract of service or training contract with an employer.

(2)  [Section 12 Subsection (2) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] Subsection (1) applies in relation to a contract of service whether the contract is or was express or implied, oral or in writing.

(3)  Subsection (1) applies in relation to manual labour, clerical work or otherwise.

13 Certain contractors and salespeople, &c., to be taken to be workers

(1)  A contractor who –

(a) performs work under a contract made with another person; and

(b) does not sublet the contract or employ any worker to perform the work; and

(c) does not hold his or her own personal accident insurance during the period in which the work is performed –

is to be taken to be, for the purposes of this Act, a worker in the employment of the person while performing the work.

(2)  Subsection (1) does not apply in relation to a contract in relation to work that is incidental to a trade or business regularly carried on by the contractor in the contractor's own name or under a business or firm name.

(3)  A salesperson, canvasser, collector, or other person, who is paid wholly or partly by commission is to be taken to be, for the purposes of this Act, while engaged in activities to which the payment relates, a worker in the employment of the person by whom the commission is payable.

(4)  Subsection (3) does not apply to a person paid wholly or partly by commission if the commission is received for or in connection with work incidental to a trade or business regularly carried on by the salesperson, canvasser, collector or other person or by a firm of which he or she is a member.

14 Taxi drivers and luxury hire car drivers to be taken to be workers

(1)  A person who drives a vehicle as a luxury hire car with the consent or authority of a person who holds a licence, or other authority, in this State to operate a luxury hire car is to be taken to be, for the purposes of this Act, a worker employed by the holder of the licence or other authority, while the person is driving the vehicle or performing any associated activity.

(2)  A person who drives a vehicle as a taxi is to be taken to be, for the purposes of this Act, a worker employed by the holder of a licence or other authority to operate the vehicle as a taxi, while the person is driving the taxi or performing any associated activity.

(3)  For the purposes of this section, a vehicle is operated as a luxury hire car or a taxi if it is a luxury hire car, or taxi, respectively, for the purposes of an enactment of this State as in force at the time the vehicle is so operated.

(4)  This section does not apply to a driver of a luxury hire car or taxi if the driver is also the holder of the licence or other authority.

15 Persons plying vehicles or vessels for hire to be taken to be workers

A person who is engaged in plying for hire with a vehicle or vessel, the use of which is obtained from the owner of the vehicle or vessel under a contract of bailment (other than a hire-purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings of the vehicle or vessel, is to be taken to be, for the purposes of this Act, a worker employed by that owner while so engaged.

16 Jockeys to be taken to be workers

(1)  In this section –

racing licence means a licence or other authority authorising a person to ride horses in races or official trials;

relevant activity means training a horse, or engaging in associated activities, in preparation for riding a horse for fee or reward;

Tasracing means Tasracing Pty Ltd formed under the Racing (Tasracing Pty Ltd) Act 2009 .

(2)  A jockey or apprentice is to be taken to be, for the purposes of this Act, a worker employed by Tasracing while performing a relevant activity during a period in which he or she holds a racing licence, if he or she was, at the beginning and end of that period –

(a) engaged to ride a horse for fee or reward at a race meeting or official trial held in Tasmania; or

(b) engaged to ride a thoroughbred horse in a training session in Tasmania conducted by a person authorised under a law of this State to train horses for racing.

(3)  For the purposes of determining any compensation payable to or in respect of a person to whom subsection (2) applies –

(a) the person is to be taken to have been continuously employed by Tasracing for the period during which he or she has continuously held a racing licence; and

(b) any earnings from riding engagements in another State during the 12 months immediately before the period of his or her application for compensation, or during the period for which he or she held a racing licence, are to be taken to be earnings received in the employment of Tasracing.

(4)  Despite any other provision of this Act, the normal weekly earnings of a person to whom subsection (2) applies are not to be more than 2 times the basic salary.

17 Ministers of religion to be taken to be workers

A minister of religion is to be taken to be, for the purposes of this Act, a worker in relation to the carrying out of his or her activities on behalf of the church.

18 Persons may be prescribed to be workers

A person who is a member of a class of persons that is prescribed for the purposes of this section is to be taken to be, for the purposes of this Act, a worker in relation to the carrying out of an activity prescribed for the purposes of this section.

19 Volunteers engaged in fire-fighting or fire prevention operations to be taken to be workers

(1)  In this section –

fire-fighting operations includes –

(a) any act that is necessary or expedient for or directed towards –

(i) extinguishing a fire; or

(ii) preventing the spread of a fire; or

(iii) saving life or preventing injury to persons by a fire; or

(iv) preventing property from being destroyed or damaged by fire; or

(v) providing sustenance for persons performing any act referred to in subparagraph (i) , (ii) , (iii) or (iv) ; or

(vi) taking action to prevent the outbreak of fire; and

(b) the undergoing of training in relation to all or any acts specified in paragraph (a) ;

fire-fighting person or body means –

(a) the Secretary of the responsible Department in relation to the Fire Service Act 1979 ; or

(b) the State Fire Commission within the meaning of that Act; or

(c) any brigade within the meaning of that Act;

fire prevention operations means any operations carried on, or any work or other acts done, for the purpose of preventing the outbreak of fire or abating the danger of fire, and includes the undergoing of training in relation to any of those operations or acts or that work.

(2)  A person who, as a volunteer, engages in fire-fighting operations or fire prevention operations –

(a) with the consent of; or

(b) under the authority of; or

(c) in cooperation with –

a fire-fighting person or body is to be taken to be, for the purposes of this Act, a worker employed by the Crown while so engaged.

(3)  [Section 19 Subsection (3) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] For the purposes of subsection (2) , a person engages in operations mentioned in that subsection as a volunteer only if the person engages in the operations otherwise than under a contract for services, a contract of service, or a training contract, with a fire-fighting person or body.

(4)  For the purposes of this section, any meeting, competition, or demonstration, related to the prevention, control or extinguishment of fires is to be taken to be training.

20 Volunteers engaged in providing ambulance services to be taken to be workers

(1)  In this section –

ambulance provider means –

(a) the Secretary of the responsible Department in relation to the Ambulance Service Act 1982 ; or

(b) [Section 20 Subsection (1) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] the Commissioner of Ambulance Services; or

(c) [Section 20 Subsection (1) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] any officer of the Ambulance Service;

[Section 20 Subsection (1) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] Commissioner of Ambulance Services means the Commissioner within the meaning of the Ambulance Service Act 1982 .

(2)  [Section 20 Subsection (2) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] For the purposes of this section, ambulance services and "officer of the Ambulance Service" have the meanings assigned to those expressions respectively by section 3 of the Ambulance Service Act 1982 .

(3)  A person who, as a volunteer, engages in ambulance services –

(a) with the consent of, under the authority of, or in cooperation with, an ambulance provider; or

(b) [Section 20 Subsection (3) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] [Section 20 Subsection (3) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] in pursuance of an arrangement made with the person by the Commissioner of Ambulance Services in the exercise of the performance of that Commissioner's functions under the Ambulance Service Act 1982  –

is to be taken to be, for the purposes of this Act, a worker employed by the Crown while so engaged.

(4)  [Section 20 Subsection (4) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] For the purposes of subsection (3) , a person engages in ambulances services as a volunteer only if the person engages in the operations otherwise than under a contract for services, a contract of service, or a training contract, with –

(a) the Secretary of the responsible Department in relation to the Ambulance Service Act 1982 ; or

(b) [Section 20 Subsection (4) amended by No. 73 of 2013, Sched. 1, Applied:01 Jul 2014] the Commissioner of Ambulance Services.

(5)  References in this section to engaging in ambulance services are to be construed as including references to the undergoing of training or instruction in those services.

21 Police volunteers to be taken to be workers

(1)  In this section –

police operations means –

(a) marine search and rescue operations within the meaning of the Marine Search and Rescue Act 1971 ; and

(b) operations required for the purpose of searching for or bringing to safety –

(i) persons in danger in the State; or

(ii) persons in need of assistance as a result of a casualty occurring in the State; or

(iii) persons suffering from illness or injury in the State who require assistance that is not immediately available to them; and

(c) operations required for the purpose of protecting property in the State.

(2)  A person who, as a volunteer, performs police operations with the consent of, under the authority of, or in cooperation with, the Secretary of the responsible Department in relation to the Police Service Act 2003 is to be taken to be, for the purposes of this Act, a worker employed by the Crown while so engaged.

(3)  [Section 21 Subsection (3) amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] For the purposes of subsection (2) , a person performs police operations as a volunteer only if the person performs the operations otherwise than under a contract for services, a contract of service, or a training contract, with the Secretary of the responsible Department in relation to the Police Service Act 2003 .

22 Prescribed classes of volunteers to be taken to be workers

A person who is a member of a class of persons prescribed for the purposes of this section and who, as a volunteer, performs work, of a class prescribed for the purposes of this section, that is of benefit to the State is to be taken to be, for the purposes of this Act, a worker employed by the Crown while so performing the work.

23 Certain persons not to be taken to be workers

A person is not to be taken, for the purposes of this Act, to be a worker while engaged in any of the following employment or programs:

(a) employment as an outworker;

(b) employment of a casual nature otherwise than for the purposes of the employer's trade or business;

(c) employment as a member of a fishing boat who is remunerated wholly or mainly by a share in the profits of gross earnings in respect of that boat;

(d) an approved program of work for unemployment payment under the Social Security Act 1991 of the Commonwealth.

24 Persons who are Commonwealth employees when relevant exposure to asbestos occurred not to be taken to be workers

[Section 24 Amended by No. 11 of 2013, Sched. 1, Applied:01 Jul 2013] A person who is a worker by reason only of being a worker under a contract of service or training contract with the Commonwealth is not to be taken to be, for the purposes of this Act, a worker, other than for the purposes of section 84(3) .

25 Sportspeople not to be taken to be workers

A person is not to be taken to be, for the purposes of this Act, a worker while he or she is, under a contract –

(a) participating as a contestant in any sporting or athletic activity; or

(b) engaged in training or preparing himself or herself with a view to participating as a contestant in any sporting or athletic activity; or

(c) travelling in connection with participating as a contestant in any sporting or athletic activity –

if, under the contract, he or she is not entitled to any remuneration other than remuneration for the doing of those things.

Division 3 When employment is connected with this State

26 When employment is "connected with this State"

(1)  A worker’s employment is, in respect of a relevant employment period, connected with –

(a) the State where the worker usually worked in the employment during that period; or

(b) if no State, or no single State, is identified by paragraph (a) , the State where the worker was usually based for the purposes of the employment during that period; or

(c) if no State, or no single State, is identified by paragraph (a) or (b) , the State where the employer’s principal place of business in Australia was located during that period.

(2)  The fact that a worker is outside this Stateduring a relevant employment period does not prevent compensation being payable under this Act, if the employment is, during that period, connected with this State in accordance with this Division.

(3)  For a worker working on a ship, if no State, or no single State, is identified by subsection (1) , the worker’s employment is, while working on the ship in a relevant employment period, connected with –

(a) the State where the ship was registered during that period; or

(b) if the ship is registered in more than one State during that period, the State where the ship last became registered during that period.

(4)  For the purposes of the calculation of the worker's connection with a State, if no State is identified for a worker by the application of subsections (1) and (3) , the worker’s employment is connected with this State during a relevant employment period if –

(a) it is reasonably likely that the person was exposed to asbestos in the course of the person's employment as a worker in this State; and

(b) the worker is not entitled to compensation, in relation to an asbestos-related disease that the worker has, under a law of –

(i) an external Territory; or

(ii) a place outside Australia –

relating to workers compensation or compensation for asbestos-related diseases.

(5)  In deciding whether a person usually worked in a State during a relevant employment period –

(a) regard must be had to the history of the person's engagement in an occupation including, where applicable to that period, the person's occupational history during the relevant employment period; and

(b) regard must be had to any part of that period during which the worker worked in a State, or was in a State, for the purposes of employment, whether or not the worker is regarded as working or employed in that State under a law relating to workers compensation or compensation for asbestos-related diseases; and

(c) regard must not be had to any temporary arrangement under which the worker works in a State for a period of 6 months or less.

(6)  Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.

27 Determination of State of connection by Commissioner or Tribunal

(1)  If the question of whether this State is the State of connection arises in a proceeding before the Commissioner or the Tribunal in relation to an application for compensation, the Commissioner or Tribunal must determine the State of connection in accordance with section 26 .

(2)  Subsection (1) does not apply if there is a determination of the State of connection that is to be recognised under section 28 .

(3)  A person who makes an application for compensation, or the Crown, may refer to the Tribunal for determination the question of which State is the State of connection in relation to the person.

(4)  A referral may not be made under subsection (3) in relation to a relevant employment period if there is a determination of the State of connection that is to be recognised under section 28 in relation to that period.

28 Recognition of previous determinations of State of connection

(1)  This section applies, in respect of a relevant employment period, in relation to a person who has an asbestos-related disease if a determination of the State of connection in relation to the relevant employment period is made by any of the following courts or tribunals:

(a) the Tribunal under section 27 ;

(b) a court or tribunal of a State under a provision of a law of the State corresponding, in whole or in part, to section 27 ;

(c) a court of this State or another State in the course of proceedings on a claim for damages in relation to the period.

(2)  The State determined, in relation to a relevant employment period, as mentioned in subsection (1) in relation to a person is to be recognised for the purposes of this Act as the State of connection in relation to the person for that relevant employment period.

(3)  This section does not prevent any appeal relating to a determination of a court or tribunal referred to in subsection (1) .

(4)  If a determination is changed on appeal to a court, the changed determination is to be recognised under this section.

Part 3 Entitlement to Compensation

29 Persons with compensable disease entitled to compensation

(1)  Subject to this Act, a person –

(a) who has a compensable disease; and

(b) in relation to whom there is a determination under this Act by the Commissioner or the Tribunal that the person has an imminently fatal asbestos-related disease –

is entitled to compensation under this Act.

(2)  Subject to this Act, a person –

(a) who has a compensable disease; and

(b) in relation to whom –

(i) there is a determination under this Act by the Commissioner or the Tribunal that the person has a non-imminently fatal asbestos-related disease; and

(ii) there is no determination under this Act by the Commissioner or the Tribunal that the person has an imminently fatal asbestos-related disease –

is entitled to compensation under this Act if the person's degree of impairment is 10% or more.

(3)  Subject to this Act, the fact that a person has received compensation in relation to an asbestos-related disease because he or she was entitled under subsection (2) to compensation in relation to the disease does not prevent the person being entitled to compensation in accordance with subsection (1) in respect of that asbestos-related disease or any other asbestos-related disease.

30 Entitlement to compensation when person contracts another compensable disease

(1)  A person who has received compensation under this Act in relation to an asbestos-related disease because he or she is entitled to it under section 29(1) is not entitled to further compensation under this Act in relation to a different asbestos-related disease.

(2)  A person who has received compensation under this Act in relation to an asbestos-related disease because he or she is entitled to it under section 29(2) is not entitled to further compensation under section 29(2) in relation to a different asbestos-related disease.

(3)  However, subsection (2) does not prevent a person making an application for compensation that relates to more than one asbestos-related disease.

(4)  Also, subsection (2) does not prevent a person receiving further compensation by way of –

(a) a lump sum payable to him or her in accordance with section 75 or 77 wholly or partly because he or she has an asbestos-related disease that is different from the disease in relation to which he or she received compensation referred to in section 29(2) ; or

(b) an increase in the amount of any weekly payments payable to him or her under this Act in accordance with section 80 because his or her degree of incapacity has increased wholly or partly because he or she has an asbestos-related disease that is different from the disease in relation to which he or she received compensation referred to in section 29(2) .

31 Members of family of person who has compensable disease entitled to compensation

(1)  A person is a relevant deceased person for the purposes of this section if –

(a) he or she is a person who has a compensable disease; and

(b) he or she dies; and

(c) an asbestos-related disease was reasonably likely to be a significant factor contributing to his or her death or he or she had an imminently fatal asbestos-related disease.

(2)  Subject to this Act, a person is entitled to compensation under this Act if –

(a) the person is –

(i) a member of the family of a compensable person who is a relevant deceased person; and

(ii) a person to whom all or part of any compensation payable under this Act may be provided in accordance with Schedule 1 as it applies in relation to the person who is a compensable person; and

(b) the relevant deceased person died within 12 months before the commencement day.

(3)  Subject to this Act, a person is entitled to compensation under this Act if –

(a) the person is –

(i) a member of the family of acompensable person who is a relevant deceased person; and

(ii) a person to whom all or part of any compensation payable under this Act may be provided in accordance with Schedule 1 as it applies in relation to the person who is a compensable person; and

(b) the relevant deceased person dies after the commencement day.

(4)  A person is not entitled to compensation under this Act in respectof a relevant deceased person who died before 12 months before the commencement day.

(5)  A person who is a member of the family of a compensable person who is a relevant deceased person is not entitled to compensation under this Act in respect of the relevant deceased person if –

(a) the Commissioner has made a determination under this Act that the relevant deceased person is entitled to an amount of compensation by way of a lump sum that is equivalent to the maximum amount of lump sum compensation in relation to the relevant deceased person; or

(b) the Commissioner has made more than one determination under this Act that the relevant deceased person is entitled to an amount of compensation by way of a lump sum and the total of those lump sums is equivalent to the maximum amount of lump sum compensation in relation to the relevant deceased person.

(6)  For the purposes of subsection (5) , the maximum amount of lump sum compensation in relation to a relevant deceased person is –

(a) 360 compensation units; and

(b) the number of compensation units determined under whichever of section 72(2)(b) or section 72(4)(b) applied to the relevant deceased person.

32 Assumptions as to exposure as a worker

(1)  If a person who has an asbestos-related disease was employed as a worker for a period (whether or not the period was continuous) of at least 12 months during a relevant employment period in which the person's employment is connected with this State –

(a) at a workplace at which, at the time of that employment, products containing asbestos were manufactured; and

(b) in an occupation in which, it may reasonably be assumed, a person was likely to have been exposed to asbestos in the ordinary course of his or her duties as a worker in the occupation –

the contraction of the disease by the person is to be taken to be reasonably attributable to exposure to asbestos in the course of that employment.

(2)  Subsection (1) applies in relation to a person whether or not the person was, or may have been, exposed to asbestos otherwise than in the course of his or her employment as a worker.

(3)  For the purposes of subsection (1) , a reference to a workplace at which products containing asbestos were manufactured includes, but is not limited to including, premises, owned or occupied by the manufacturer of the products, at which such products were manufactured, packed, stored or assembled.

(4)  For the purposes of subsection (1) , products containing asbestos are manufactured by a manufacturer ("the principal manufacturer") whether the products consist of –

(a) an object, containing asbestos, that is manufactured by the principal manufacturer; or

(b) an object, containing asbestos, that has been manufactured by another manufacturer but is made into, or forms part of, another object manufactured by the principal manufacturer.

(5)  Nothing in this section is to be taken to limit the circumstances in which the contraction of an asbestos-related disease may be taken to be reasonably attributable to exposure to asbestos in the course of employment.

Part 4 Applications for Compensation

33 Applications for compensation

(1)  A person who has a compensable disease may make an application for compensation under this Act by lodging with the Commissioner an application in the approved form.

(2)  An application for compensation by a person who has a compensable disease is to be accompanied by –

(a) a relevant certificate in relation to the person; and

(b) evidence of the occupational history of the person; and

(c) other evidence that may be relevant to the determination of whether or not the person has or had an asbestos-related disease; and

(d) other evidence in respect of the person's possible exposure to asbestos, whether or not during the course of the person's employment as a worker.

(3)  For the purposes of subsection (2)(a) , a relevant certificate in relation to a person is a medical certificate, from a medical specialist, certifying that –

(a) the person has a non-imminently fatal asbestos-related disease; or

(b) the person has an imminently fatal asbestos-related disease.

(4)  A member of the family of a person who has a compensable disease may make an application for compensation under this Act by lodging with the Commissioner an application in the approved form.

(5)  An application for compensation under subsection (4) in relation to a person who has a compensable disease is to be accompanied by –

(a) evidence of the occupational history of the person; and

(b) evidence that may be relevant to the determination of whether or not the person has or had an asbestos-related disease; and

(c) evidence in respect of the person's possible exposure to asbestos, whether or not during the course of the person's employment as a worker; and

(d) evidence that the person has died and of the date of the person's death; and

(e) evidence, if any, that an asbestos-related disease was reasonably likely to have been a significant factor contributing to the death of the person.

34 Applications in relation to imminently fatal disease not required in certain circumstances

(1)  Subsection (2) applies to a person if –

(a) the Commissioner has determined under section 70 an application for compensation made by the person and has made under that section a determination that the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has subsequently received from a medical panel a determination under this Act that the person has an imminently fatal asbestos-related disease; and

(c) the person is alive at the timethe Commissioner receives the determination referred to in paragraph (b) .

(2)  If this subsection applies to a person, the Commissioner, as soon as practicable after receiving from a medical panel the determination referred to in subsection (1)(b) , must make a determination under section 70 as if –

(a) the person had made a further application for compensation under section 33(1) consisting of the application for compensation to which the determination by the Commissioner referred to in subsection (1)(a) relates; and

(b) the Commissioner had referred the medical questions in respect of the person to a medical panel in accordance with section 47 ; and

(c) the determination referred to in subsection (1)(b) formed part of a determination made by the medical panel of the medical questions in relation to the person that were referred by the Commissioner to the medical panel in accordance with section 47 .

(3)  A person who has a compensable disease and to whom a determination under section 70 that the person has a non-imminently fatal asbestos-related disease relates may provide to the Commissioner a medical certificate, given by a medical specialist, certifying that the person has an imminently fatal asbestos-related disease.

(4)  Subsection (5) applies to a person if –

(a) the Commissioner has determined under section 70 an application for compensation made by the person and has made under that section a determination that the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has subsequently received under subsection (3) a medical certificate from the person; and

(c) the Commissioner receives the medical certificate referred to in paragraph (b) within 6months after the certificate is given; and

(d) the person is alive at the time the Commissioner receives the medical certificate referred to in paragraph (b) .

(5)  If this subsection applies to a person –

(a) the application for compensation by the person to which the determination by the Commissioner referred to in subsection (4)(a) relates is to be taken to be a fresh application for compensation made by the person under section 33(1) ; and

(b) the medical certificate referred to in subsection (4)(b) is to be taken to be the certificate accompanying the application as required under section 33(2)(a) .

35 Application by family members to be made jointly

(1)  Except in accordance with the leave of the Tribunal, an application for compensation by a person who is a member of the family of a person who has a compensable disease is to be made jointly with all other members of the family amongst whom any compensation payable under this Act may be divided in accordance with Schedule 1 as it applies in relation to the person who has a compensable disease.

(2)  A person who is a member of the family of a person who has an asbestos-related disease may refer to the Tribunal the question as to whether an application for compensation may be made by the person even though the application is not made jointly with the other persons with whom, in accordance with subsection (1) , the application is required to be made.

(3)  The Tribunal may determine that an application for compensation may be made, by a person who is a member of the family of a person who has an asbestos-related disease, otherwise than jointly with the other persons with whom, in accordance with subsection (1) , the application is required to be made, if the Tribunal is satisfied that –

(a) the other persons cannot be contacted or are unwilling to be joined to the application; or

(b) for any other reason, it would be unjust to refuse to permit the application for compensation to be made other than jointly with the other persons.

36 If diagnosis of imminently fatal asbestos-related disease occurs before commencement day

(1)  Subsection (3) applies to a person who has a compensable disease if, before the commencement day, a medical specialist has given to the person a medical certificate certifying that the person has an imminently fatal asbestos-related disease.

(2)  However, subsection (1) does not apply to a medical certificate if the diagnosis or prognosis included in the certificate is incorrect.

(3)  A person to whom this subsection applies may only make an application for compensation if the application is made within –

(a) 12 months after the commencement day; or

(b) a period, if any, determined by the Commissioner or the Tribunal under section 40 , that ends after the 12-month period.

37 If diagnosis of imminently fatal asbestos-related disease occurs after commencement day

(1)  Subsection (3) applies to a person if –

(a) section 34(2) and section 36(3) do not apply to the person; and

(b) on a day after the commencement day, a medical specialist has given to the person a medical certificate certifying that the person has an imminently fatal asbestos-related disease.

(2)  However, subsection (1) does not apply to a medical certificate if the diagnosis or prognosis included in the certificate is incorrect.

(3)  A person to whom this subsection applies may only make an application for compensation in respect of an asbestos-related disease if the application is made within –

(a) 12 months after the day on which the certificate referred to in subsection (1) in respect of the disease is given to the person; or

(b) a period, if any, determined by the Commissioner or the Tribunal under section 40 , that ends after the 12-month period.

(4)  If –

(a) a person who has a compensable disease is given a medical certificate, certifying that the person has an imminently fatal asbestos-related disease, by a medical specialist who has correctly diagnosed that the person has an imminently fatal asbestos-related disease; and

(b) the person is subsequently given another medical certificate, by that medical specialist or another medical specialist, certifying that the person has an imminently fatal asbestos-related disease –

the reference in subsection (3) to the day on which a certificate is given to the person is to be taken to be a reference to the first day on which the person received the certificate referred to in paragraph (a) .

38 No time limitation where diagnosis of non-imminently fatal asbestos-related disease

An application for compensation may be made at any time by a person who has a compensable disease, if sections 36 and 37 do not apply to the person.

39 If person who has compensable disease dies

(1)  An application for compensation relating to a person who has a compensable disease and who died within 12 months before the commencement day may only be made by a person who is entitled to compensation under section 31(2) if the application is made within –

(a) 12 months after the commencement day; or

(b) a period, if any, determined by the Commissioner or the Tribunal under section 40 , that ends after the 12-month period referred to in paragraph (a) .

(2)  An application for compensation relating to a person who has a compensable disease and who has died may only be made by a person who is entitled to compensation under section 31(3) if the application is made within –

(a) 12 months after the death of the person who has a compensable disease; or

(b) a period, if any, determined by the Commissioner or the Tribunal under section 40 , that ends after the 12-month period referred to in paragraph (a) .

40 Extension of time to make application for compensation

(1)  A person may apply to the Commissioner for a determination that an application for compensation may be made by the person within a period that ends after a 12-month period specified in this Division.

(2)  The Commissioner must permit an application for compensation to be made by a person at a period, determined by the Commissioner, that ends after a 12-month period specified in this Division, if –

(a) the failure to make an application within that period was occasioned by mistake; or

(b) the person was absent from the State during all of the 12-month period.

(3)  The Commissioner may permit an application to be made under this Act by a person at a period, determined by the Commissioner, that ends after a 12-month period specified in this Division, if the Commissioner is satisfied that there was a reasonable cause for the failure to make an application for compensation within the 12-month period.

(4)  In determining whether there is reasonable cause for the purposes of subsection (3) , the Commissioner is to have regard, amongst other things, to –

(a) the difficulty that the person may have had in obtaining evidence sufficient to establish whether the person was eligible to make an application for compensation; and

(b) whether the person has, within the 12-month period referred to in the relevant section of this Division, taken all reasonable steps to attempt to obtain evidence sufficient to establish whether the person was eligible to make an application for compensation.

(5)  A person who has applied for a determination of the Commissioner under this section and who is dissatisfied with the determination of the Commissioner may refer the matter to the Tribunal.

(6)  If a matter is referred to the Tribunal under subsection (5) , the Tribunal, if it is of the opinion that –

(a) subsection (2) requires the Commissioner to permit an application for compensation to be made within a period; or

(b) there was a reasonable cause for the failure to make an application for compensation, having regard, amongst other things, to the matters referred to in subsection (4)  –

may permit the application for compensation to be made within a period specified by the Tribunal.

41 Commissioner may require further information to be provided by applicant

(1)  This section applies in relation to an application for compensation if the Commissioner is not satisfied that there is sufficient information available to the Commissioner to enable the Commissioner to determine the application under section 70 .

(2)  This section does not apply in relation to information as to the degree of impairment of a person who has an asbestos-related disease.

(3)  The Commissioner may, by notice to a person who has made an application for compensation to which this section applies –

(a) request the person to provide to the Commissioner the further information specified in the notice; and

(b) specify in the notice a date by which the information must be provided to the Commissioner; and

(c) notify the person that –

(i) the Commissioner may refuse to consider the application until the further information is provided to the Commissioner; and

(ii) the Commissioner may reject the application if the further information is not provided to the Commissioner by the date specified in the notice in accordance with paragraph (b) .

(4)  A date specified in a notice for the purposes of subsection (3)(b) is not to be earlier than 40 business days after the day on which the notice is issued.

(5)  If the Commissioner has issued a notice under subsection (3) to a person requiring the person to provide further information to the Commissioner in relation to an application for compensation –

(a) the Commissioner may refuse to consider the application until the further information is provided to the Commissioner; or

(b) the Commissioner may reject the application if the information is not provided by the person by the date specified in the notice in accordance with subsection (3)(b) .

(6)  The rejection by the Commissioner under subsection (5)(b) of an application for compensation made by a person does not prevent a further application for compensation being made by the person.

(7)  Nothing in subsection (6) is to be taken to extend a period, specified in Division 2 , in which an application for compensation must be made.

42 Rejection of application

The Commissioner may reject an application for compensation if he or she is satisfied that the application is frivolous or vexatious.

43 Rejection of application may be referred to Tribunal

(1)  A person whose application for compensation has been rejected by the Commissioner under section 41(5)(b) or section 42 may refer the matter to the Tribunal.

(2)  If the rejection of an application for compensation is referred to the Tribunal under subsection (1) , the Tribunal may –

(a) determine that the Commissioner must not reject the application; or

(b) refuse to make a determination under paragraph (a) .

44 Commissioner to refer assessment of degree of impairment to accredited impairment assessor

(1)  Subject to subsection (6) , this section applies to a person who has made an application for compensation if –

(a) the person is a person who has a compensable disease; and

(b) the Commissioner has not determined the application under section 70 ; and

(c) the application is not accompanied by a medical certificate from a medical specialist certifying that the person has an imminently fatal asbestos-related disease; and

(d) the Commissioner has not rejected, or does not intend to reject, the application under section 41(5)(b) or section 42 .

(2)  If this section applies to a person who has made an application for compensation, the Commissioner must, before referring the application to a medical panel under section 47 , refer under section 45 the medical question as to the degree of impairment of the person to an accredited impairment assessor for determination.

(3)  The Commissioner is to refer the medical question in accordance with subsection (2) within 5 business days after the application for compensation is made by the person to whom the medical question relates.

(4)  If theCommissioner, under section 41(5)(a) , has refused to consider an application for compensation by a person to whom this section applies until further information is provided to the Commissioner –

(a) subsection (3) does not apply to the medical question as to the degree of impairment of the person; and

(b) the Commissioner is to refer the medical question in accordance with subsection (2) within 5 business days after the further information is received.

(5)  If this section applies to a person who has made an application for compensation, the Commissioner may only refer the application to a medical panel under section 47 if the Commissioner, under section 49 , also provides to the medical panel a determination under section 45(3) of an accredited impairment assessor to whom the medical question as to the degree of impairment of the person has been referred, to the effect that the person has a degree of impairment of 10% or more.

(6)  This section does not apply in relation to an application for compensation by a person who has a compensable disease if the Commissioner is of the opinion that there are or may be reasons, other than because the person does not have a degree of impairment of 10% or more, for determining under section 70 that the person is not entitled to compensation under this Act.

Part 5 Determination of Medical Questions

45 Referral to accredited impairment assessor of assessment of degree of impairment

(1)  The Commissioner may refer to an accredited impairment assessor a medical question as to the degree of impairment of a person –

(a) who has a compensable disease; and

(b) to whom an application for compensation relates.

(2)  An accredited impairment assessor to whom a medical question is referred under subsection (1) is to make a decision in relation to the question within 10 business days after the question is referred to him or her.

(3)  An accredited impairment assessor may decide under subsection (2) the medical question as to the degree of impairment of a person that has been referred to the assessor by the Commissioner under subsection (1) by providing to the Commissioner notice –

(a) of the assessor's determination in relation to the medical question; or

(b) that the assessor is unable to make a determination in respect of the medical question.

(4)  If the Commissioner receives a notice under subsection (3) that an accredited impairment assessor is unable to make a determination in respect of a medical question referred to the assessor by the Commissioner, the Commissioner is to refer the question to another accredited impairment assessor under subsection (1) .

(5)  If a medical panel refers back to the Commissioner under section 60(5)(b) a medical question in relation to the degree of impairment of a person, the Commissioner is to refer the question to another accredited impairment assessor under subsection (1) .

46 Assessment of degree of impairment

(1)  The degree of impairment, of a person who has a compensable disease, that is attributable to the disease is to be, for the purpose of the determination under Part 6 of an application for compensation, assessed as at the time the application for compensation is made or at a later time, if any, that is approved.

(2)  The degree of impairment, of a person who has a compensable disease, that is attributable to the disease is, if the person has made an application under section 74 or 76 ,to be assessed –

(a) as at the time the application is made; or

(b) at a later time, if any, that is approved.

(3)  An assessment of a degree of impairment is to be undertaken by an accredited impairment assessor in accordance with –

(a) any relevant guidelines issued by the WorkCover Tasmania Board under the Workers Rehabilitation and Compensation Act 1988 ; or

(b) if there are no such guidelines, the AMA Guides; or

(c) if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, the method, if any, prescribed for the purposes of section 72 of the Workers Rehabilitation and Compensation Act 1988 .

(4)  In assessing a degree of impairment, of a person who has a compensable disease,that is attributable to the disease –

(a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the disease; and

(b) the degree may comprise a combination of impairments arising out of the same disease or various asbestos-related diseases, assessed together using the combination tables in the AMA Guides as modified, if at all, by the guidelines referred to in subsection (3) ; and

(c) an impairment arising otherwise than from the disease is not to be taken into account in assessing the degree of the impairment resulting from the disease.

47 Medical questions to be referred to medical panel

(1)  The Commissioner must refer to a medical panel all the medical questions, specified in section 8 , in relation to a person, to whom an application for compensation relates, who has a compensable disease, if –

(a) the application has not been determined by the Commissioner under section 70 ; and

(b) the Commissioner has not rejected, or does not intend to reject, the application under section 41(5)(b) or section 42 .

(2)  Subsection (1) does not apply in relation to a medical question as to the degree of impairment or incapacity of a person to whom an application for compensation relates if a medical certificate from a medical specialist certifying that the person has an imminently fatal asbestos-related disease accompanies the application.

(3)  The Commissioner may, at any time after an application for compensation in relation to a person who has a compensable disease has been determined by the Commissioner under section 70 , refer to a medical panel a medical question, including but not limited to a medical question that has arisen in relation to –

(a) whether the medical panel should make a determination that the person has an imminently fatal compensable disease or a non-imminently fatal compensable disease; or

(b) the degree of impairment or incapacity of the person; or

(c) an application under section 74 , 76 or 79 ; or

(d) whether expenses are payable under this Act in relation to the person.

(4)  The Commissioner must refer to a medical panel a medical question in relation to a person if the medical question is referred back to the Commissioner by a medical panel under section 60(4) .

(5)  This section does not apply in relation to an application for compensation in relation to a person if the Commissioner is of the opinion that there are or may be reasons, other than because of a medical question, for determining under section 70 that the person is not entitled to compensation under this Act.

48 Time for referring medical questions to medical panel

(1)  The Commissioner, within 5 business days after an application for compensation is made in relation to a person who has a compensable disease, is to refer to a medical panel under section 47(1) the medical questions in relation to the person.

(2)  If the Commissioner has, in accordance with section 44 , referred to an accredited impairment assessor under section 45 a medical question as to the degree of impairment of a person –

(a) subsection (1) does not apply in relation to the medical questions in relation to the person; and

(b) the Commissioner is to refer to a medical panel under section 47(1) the medical questions in relation to the person within 5 business days after a determination of the medical question by the assessor is received by the Commissioner.

(3)  If the Commissioner has, in a notice under section 41(3) , requested a person to provide further information that relates to a medical question –

(a) subsection (1) does not apply in relation to the medical questions in relation to the person; and

(b) the Commissioner is to refer to a medical panel under section 47(1) the medical questions in relation to the person within 5 business days after receiving the information requested.

(4)  Subsection (5) applies to a person if the Commissioner has –

(a) in accordance with section 44 , referred to an accredited impairment assessor a medical question as to the degree of impairment of the person; and

(b) in a notice under section 41(3) , requested the person to provide further information that relates to a medical question.

(5)  If this subsection applies to a person –

(a) subsections (1) , (2) and (3) do not apply in relation to the medical questions in relation to the person; and

(b) the Commissioner is to refer to a medical panel under section 47(1) the medical questions in relation to the person within 5 business days after both the determination of an accredited impairment assessor and the further information are received by the Commissioner.

(6)  The Commissioner, under section 47(4) , is to refer the medical question to a medical panel within 5 business days after receiving a notice under section 60(4) that a medical panel is referring the question back to the Commissioner.

49 Commissioner to provide opinions of assessors and other medical practitioners to medical panel

(1)  If the Commissioner refers a medical question in relation to a person to a medical panel, the Commissioner is to ensure that the referral is accompanied by any determination under section 45(3) in relation to the person or any notice, certificate, or other document, in relation to the person that the Commissioner has received from –

(a) an accredited impairment assessor; or

(b) a medical practitioner.

(2)  The Commissioner is to ensure that a medical panel to which a medical question is referred by the Commissioner is provided with any other information in the possession of the Commissioner that is likely to assist the medical panel to determine the medical question referred to the panel.

50 Register of suitably qualified medical practitioners

(1)  The Commissioner must establish and maintain a register of medical practitioners who are suitably qualified and willing to be selected for a medical panelfor the purposes of this Act.

(2)  A medical practitioner is suitably qualified if he or she is a specialist in a field of medicine in which asbestos-related diseases occur.

51 Selection of members of medical panel

(1)  If the Commissioner refers a medical question to a medical panel, the Commissioner must select 3 medical practitioners from the medical practitioner register to form the medical panel in relation to the medical question.

(2)  The medical practitioners selected to form a medical panel in relation to a medical question are to be medical practitioners –

(a) who are listed in the medical practitioner register; and

(b) so far as is reasonably practicable, who are specialists in the field of medicine in which occurs the asbestos-related disease to which the medical question relates.

(3)  If a medical question relates to more than one asbestos-related disease, the Commissioner is to ensure, so far as is reasonably practicable, that amongst the medical practitioners selected to form the medical panel there is, in relation to each of the fields of medicine in which occurs a disease to which the medical question relates, a medical practitioner who is a specialist in the field.

(4)  The Commissioner must not select a medical practitioner to be part of a medical panel in relation toa medical question in respect of a person if the medical practitioner –

(a) has, in any capacity other than that of member of a medical panel –

(i) been involved in the examination or treatment of the person in relation to whether or not the person has an asbestos-related disease or the degree of impairment, or incapacity, of the person; or

(ii) provided medical services, including by giving a medical certificate, to the person in relation to whether or not the person has an asbestos-related disease or the degree of impairment, or incapacity, of the person; or

(b) informs the Commissioner that, for any reason, the medical practitioner's appointment to the medical panel could give rise to a conflict of interest.

(5)  A member of a medical panel is entitled to be paid the remuneration determined by the Minister.

Division 4 Referrals to medical practitioners

52 Medical panel may refer medical question to medical practitioner

(1)  A medical panel may refer to a medical practitioner a medical question referred to the medical panel by the Commissioner in relation to a person –

(a) who has a compensable disease; and

(b) to whom an application for compensation relates.

(2)  Subsection (1) applies whether or not an application for compensation in relation to the person has been determined under section 70 .

53 Commissioner is to refer to medical practitioner person receiving weekly payments

If a person is receiving weekly payments under this Act, the Commissioner, once in each calendar year, is to refer the medical question of the degree of incapacity of the person to a medical practitioner.

54 Opinion of medical practitioner to whom medical question referred

(1)  A medical practitioner to whom a medical question is referred by a medical panel or the Commissioner may provide to the medical panel or the Commissioner, respectively, the practitioner's opinion in relation to the medical question.

(2)  If the Commissioner receives, from a medical practitioner to whom the Commissioner referred a medical question, the opinion of the practitioner in relation to the question, the Commissioner may refer the question to a medical panel under section 47(3) .

(3)  A medical panel may, in making a determination under this Act, have regard to the opinion of a medical practitioner who is not a member of the panel.

Division 5 Medical examinations by medical professionals

55 Person may be required to attend medical examination or take test

(1)  A medical professional to whom a medical question in relation to a person has been referred under this Act may, by notice to the person, require the person to undergo, at the time specified in the notice, an examination or test specified in the notice.

(2)  An examination or test of a person by a medical professional under this section is only to be conducted if the medical professional considers it is necessary to do so to determine the medical question that has been referred to the medical professional.

(3)  A notice under subsection (1) to a person is to specify that if the person refuses or fails, other than on reasonable grounds, to undergo an examination or test specified in the notice, the Commissioner must take in relation to the person the action referred to in section 57 .

56 Medical professional may ask person questions, &c.

(1)  A medical professional to whom a medical question in relation to a person is referred under this Act may require the person –

(a) to answer questions; or

(b) to produce relevant documents or information; or

(c) to consent to the production of relevant documents or information by another person.

(2)  A medical professional must advise a person on whom a requirement is imposed by the medical professional under subsection (1) that, if the person refuses, or fails, to comply with the requirement, the Commissioner must take in relation to the person the action referred to in section 57 .

57 Refusal by person to assist medical professional

(1)  Subsection (2) applies to a person if the person –

(a) unreasonably refuses, or fails, to attend for an examination or test at a place and time of which the person has at least 5 business days' notice under section 55(1) ; or

(b) refuses, or fails, to undergo an examination or test by a medical professional that the person has been required to undergo under section 55 ; or

(c) obstructs an examination or test that the person has been required to undergo by a medical professional under section 55 ; or

(d) unreasonably refuses, or fails, to answer questions asked by a medical professional under section 56 ; or

(e) unreasonably refuses, or fails, to produce relevant documents orinformation, or to consent to the production of relevant documents or information, when required to do so by a medical professional under section 56 .

(2)  If this subsection applies to a person –

(a) the medical professional is to advise the Commissioner; and

(b) the Commissioner must refer to the Tribunal the matter of the person's refusal, failure or obstruction.

(3)  If subsection (2) applies to a person who has made an application under section 33(1) , section 74 , section 76 or section 79 that has not been determined under section 70 , section 75 , section 77 or section 80 , respectively, the Commissioner, despite any other provision of this Act, may refuse to deal with the application until –

(a) the Commissioner is advised by the Tribunal that the Tribunal has made a determination that it is satisfied of the relevant matters in relation to the person as referred to in section 58(3) ; or

(b) the Tribunal otherwise determines the matter.

58 Determination by Tribunal of matter referred to it under section 57

(1)  If a matter in relation to a person to whom section 57(2) applies is referred to the Tribunal under that provision, the Tribunal may do either or both of the following:

(a) suspend the right of the person to compensation under this Act;

(b) suspend the right of the person, or a member of a family of the person, to have expenses paid under Part 11  –

until the Tribunal makes a determination that it is satisfied of the relevant matters in relation to the person to whom section 57(2) applies or the Tribunal otherwise determines the matter.

(2)  The Tribunal may specify in a determination in relation to a matter referred to it –

(a) whether compensation suspended by it is to be paid to a person in respect of the period of suspension; and

(b) the period, of that suspension, in respect of which the person is entitled to be paid compensation.

(3)  The relevant matters in relation to a person to whom section 57(2) applies are that –

(a) the person –

(i) has attended an examination, or test, by a medical professional, at a place and time of which the person has at least 5 business days' notice; and

(ii) hasnot refused or failed to undergo, or obstructed, the examination or test; or

(b) the person has answered the questions, produced the documents or information or consented to the production of the documents or information referred to in section 57(1) ; or

(c) the Tribunal is satisfied that the refusal, failure, or obstruction, which constitutes the matter referred to the Tribunal under section 57(2)(b) , was reasonable.

(4)  The Tribunal must notify the Commissioner if the Tribunal makes a determination that –

(a) the Tribunal is satisfied as to the relevant matters in relation to a person to whom section 57(2) applies; or

(b) the Tribunal has suspended under subsection (1)(a) or subsection (1)(b) a person's rights.

(5)  If the Commissioner is notified under subsection (4) that the Tribunal has suspended a person's rights under subsection (1)(a) , the Commissioner –

(a) must not pay a lump sum payment to the person; and

(b) must cease to make weekly payments, if any, to the person –

until the Commissioner is notified by the Tribunal that the Tribunal has made a determination that it is satisfied of the relevant matters in relation to the person or the Tribunal otherwise determines the matter.

(6)  If the Commissioner is notified under subsection (4) that the Tribunal has suspended a person's rights under subsection (1)(b) , the Commissioner must not pay any expenses to the person under Part 11 until the Commissioner is notified by the Tribunal that the Tribunal has made a determination that it is satisfied of the relevant matters in relation to the person or the Tribunal otherwise determines the matter.

(7)  If the Tribunal specifies in a determination in accordance with subsection (2) that compensation is to be paid to a person in respect of a period during which the person's rights to compensation were suspended, the Commissioner is to pay to the person the compensation, in respect of that period, to which the person would have, but for the suspension, been entitled.

59 Representation before medical professional

(1)  A person in respect of whom a medical professional is conducting an examination or test under this Act is not entitled to be represented by any person when the person attends the examination or test.

(2)  However, a medical professional may permit a person in respect of whom an examination or test is to be conducted under this Act to be represented by a person when the person attends the examination or test.

(3)  A person in respect of whom an examination or test is being conducted under this Act is entitled to be accompanied by a person of his or her choice when the person attends the examination or test.

Division 6 Determination of medical questions

60 Determination by medical panel

(1)  A medical panel must make a decision in relation to a medical question referred to the panel.

(2)  If 2 or more members of a medical panel agree as to a decision in respect of a medical question, the decision is taken to be the decision of the medical panel.

(3)  A medical panel may decide a medical question by –

(a) making a determination in relation to the medical question; or

(b) deciding that its members are unable to agree as to the determination of the medical question.

(4)  If a medical panel decides that its members are unable to agree as to the determination of the medical question, the medical panel is to refer the question back to the Commissioner.

(5)  A medical panel must notify the Commissioner in writing of the panel's decision –

(a) to make a determination in relation to a medical question; or

(b) that the medical panel is unable to agree as to the determination of the medical question and is referring the matter back to the Commissioner.

(6)  A notice under subsection (5) that the medical panel has made a determination in relation to a medical question is to specify the evidence and any reasoning used in determining the question.

(7)  A notice under subsection (5) that the medical panel is unable to agree as to the determination of a medical question is to include the reasons why the panel is unable to so agree.

(8)  A notice of a medical panel's decision is to be given to the Commissioner within 3 business days after the decision is made.

61 Determinations by medical panel if matter referred to accredited impairment assessors

(1)  [Section 61 Subsection (1) substituted by No. 12 of 2024, s. 4, Applied:05 Sep 2024] Subject to subsection (3) , if the medical panel receives from the Commissioner, under section 47 , a notice of a determination under section 45(3) in relation to a medical question –

(a) the determination is taken to be a determination of the medical panel under section 60 in relation to the medical question if the medical panel agrees with the determination; or

(b) if the medical panel does not agree with the determination, the determination is taken to be a referral of the medical question to the medical panel for the purposes of section 60 .

(2)  A medical panel, within 15 business days after receiving from the Commissioner a notice of a determination under section 45(3) from an accredited impairment assessor in relation to a medical question, may request the Commissioner to refer the medical question under section 45 to another accredited impairment assessor.

(3)  If the medical panel requests the Commissioner under subsection (2) to refer a medical question to another accredited impairment assessor, subsection (1) only applies in relation to the decision of the accredited impairment assessor to whom the medical question is referred in accordance with that request.

62 Determination by medical panel of whether person has imminently or non-imminently fatal disease

(1)  A medical panel to which the medical questions in relation to an application for compensation by a person are referred by the Commissioner under section 47(1) is, if it is satisfied that the person has a compensable disease, to make a determination under section 60 as to whether –

(a) the person has an imminently fatal asbestos-related disease; or

(b) the person has a non-imminently fatal asbestos-related disease.

(2)  A medical panel to which a medical question in relation to a person is, after an application for compensation by the person is determined by the Commissioner under section 70 , referred by the Commissioner under this Act, may make a determination under section 60 as to whether –

(a) the person has an imminently fatal asbestos-related disease; or

(b) the person has a non-imminently fatal asbestos-related disease.

(3)  For the purposes of subsections (1) and (2) , the medical panel is to determine –

(a) that the person has an imminently fatal asbestos-related disease if it is satisfied that –

(i) the person has an asbestos-related disease; and

(ii) the person is reasonably likely to die within 2 years from the date on which the medical panel makes its determination; and

(iii) an asbestos-related disease is reasonably likely to be a significant factor contributing to the person's death; or

(b) that the person has a non-imminently fatal asbestos-related disease if it is satisfied that –

(i) the person has an asbestos-related disease; and

(ii) the person is not reasonably likely to die within 2 years from the date on which the certificate is given, or, if the person is reasonably likely to die within 2 years from the date on which the medical panel makes its determination, that an asbestos-related disease is not reasonably likely to be a significant factor contributing to the person's death.

63 Time in which medical panel to make determination

(1)  A medical panel is to make, in relation to a medical question referred to it under this Act, a decision under section 60(1) as soon as practicable and, in any event, within 15 business days after the medical question is referred to it.

(2)  Subsection (3) applies to a medical question referred to a medical panel under this Act if the medical panel –

(a) refers the person to a medical practitioner under section 52 for an examination or test in relation to the medical question; or

(b) requires the person to undergo an examination or test under section 55 in relation to the medical question.

(3)  If this subsection applies to a medical question referred to a medical panel under this Act –

(a) subsection (1) does not apply in relation to the medical question; and

(b) the medical panel is to make a decision under section 60(1) in relation to the medical question within 15 business days after it –

(i) receives a determination of the medical question from a medical practitioner to whom the question has been referred under section 52 ; or

(ii) has completed the examination, or received the results of the test –

as the case may be.

(4)  If a medical panel requests the Commissioner under section 61(2) to refer a medical question to another accredited impairment assessor –

(a) subsection (1) does not apply in relation to the medical question; and

(b) the medical panel is to make a decision under section 60(1) in relation to the medical question as soon as practicable, and in any case within 15 business days, after receiving from the Commissioner a copy of the decision by the other assessor in relation to the medical question.

64 Medical panel to determine own procedure

Subject to regulations, if any, under this Act in relation to the practice and procedures of a medical panel, a medical panel may determine its own practice and procedures.

65 Medical panels not bound by rules of evidence

A medical panel, or a member of a medical panel, is not bound by the rules of evidence but may inform itself or himself or herself, on any matter relating to a medical question referred to the medical panel, in the manner the panel or member of the panel thinks fit.

Division 7 Commissioner to pay costs of certain examinations and tests

66 Commissioner to pay for costs of tests or examinations by accredited impairment assessors

(1)  If this section applies to a person, the Commissioner is liable for the costs of an examination or test of the person, once in each calendar year, by an accredited impairment assessor to determine the degree of impairment of the person.

(2)  This section applies to a person if an application for compensation by the person has, in accordance with section 44(5) , not been referred to a medical panel because the Commissioner has not received a determination under section 45(3) of an accredited impairment assessor to the effect that the person has a degree of impairment of 10% or more.

(3)  This section applies to a person if –

(a) the person is a person who has a compensable disease; and

(b) a determination has been made under section 70 that the person has a non-imminently fatal asbestos-related disease; and

(c) the Commissioner has not made a determination under this Act that the person has an imminently fatal asbestos-related disease; and

(d) the Commissioner has not made a determination under this Act that the person has a degree of impairment of 51% or more.

(4)  This section applies to a person if a medical question as to the degree of impairment of the person has been referred by the Commissioner to an accredited impairment assessor under section 45(1) .

67 Commissioner to pay for costs of certain medical examinations and tests

(1)  The Commissioner is liable for the costs of –

(a) an examination or test carried out on a person by a medical practitioner to whom a medical question in relation to the person is referred by the Commissioner under this Act; and

(b) any analysis required in relation to that examination or test.

(2)  If the Commissioner has determined under section 70 that a person who has a compensable disease is entitled to compensation under this Act, the Commissioner is liable for the costs of –

(a) one examination or test carried out on a person by a medical specialist in a calendar year; and

(b) any analysis required in relation to that examination or test.

(3)  The Commissioner is liable for the costs of –

(a) an examination or test that a person is required by a notice under section 55(1) to undergo; and

(b) any analysis required in relation to that examination or test.

68 Applications for payment of costs

(1)  If the Commissioner is liable under this Division for the costs of an examination or test of a person by a medical practitioner or accredited impairment assessor, or any analysis conducted by a person in relation to that examination or test, the person may apply to the Commissioner for the payment of those costs.

(2)  If an application is made by a person under subsection (1) in relation to the costs of any examination, test or analysis for which the Commissioner is liable under this Division, the Commissioner must –

(a) if the person has paid the costs of the medical practitioner, accredited impairment assessor or person who conducted the examination, test or analysis, reimburse the person the amount of those costs; or

(b) in any other case, pay those costs to the medical practitioner, accredited impairment assessor or person who conducted the examination, test or analysis.

Part 6 Determination of Applications for Compensation

69 Application for compensation to be determined after determination of medical panel

(1)  The Commissioner is to determine under section 70(1) an application for compensation after receiving from a medical panel a determination of the medical questions referred to the medical panel under section 47 in relation to the application for compensation.

(2)  The Commissioner is to determine under section 70(1) an application for compensation as soon as practicable, but in any case not more than 5 business days, after receiving from a medical panel the determination of the medical questions in relation to the application for compensation.

(3)  Subsections (1) and (2) do not apply in relation to an application for compensation if the Commissioner has, in accordance with section 47(5) , not referred to a medical panel the medical questions in relation to the application.

70 Commissioner to determine applications for compensation

(1)  The Commissioner must determine an application for compensation by a person who has a compensable disease by –

(a) determining that the person is entitled to compensation under this Act; or

(b) determining that the person is not entitled to compensation under this Act.

(2)  If the Commissioner determines under subsection (1)(a) that a person who has a compensable disease is entitled to compensation under this Act, the determination must include a determination as to whether the person has –

(a) an imminently fatal asbestos-related disease; or

(b) a non-imminently fatal asbestos-related disease.

(3)  If the Commissioner determines under subsection (1)(a) that a person who has a compensable disease is entitled to compensation under this Act, the determination must include –

(a) a determination as to the amount of compensation by way of lump sum to which the person is entitled in accordance with section 72 or 73 ; and

(b) a determination in accordance with Division 3 of Part 7 as to whether the person is entitled to weekly payments and the amount of any such payments.

(4)  The Commissioner must determine an application for compensation by a member, or members, of a family of a person who has a compensable disease by –

(a) determining that a member, or members, of the family are entitled to compensation under this Act; or

(b) determining that no members of the family are entitled to compensation under this Act.

(5)  If the Commissioner determines under subsection (4)(a) that a member, or members, of the family of a person who has a compensable disease are entitled to compensation under this Act, the determination is to include a determination as to –

(a) the amount of compensation by way of lump sum to which the member, or members, of the family are entitled in accordance with this Act; and

(b) the proportions in which the amount is to be divided, if at all, between those members of the family.

(6)  As soon as practicable after making a determination under subsection (1) or (4) in relation to an application for compensation, the Commissioner must give, to the person who made the application, notice of the making of the determination.

(7)  A notice, given to a person by the Commissioner under subsection (6) , of a determination by the Commissioner that determines that any person who made the application is not entitled to compensation under this Act must set out the grounds on which the determination was made that the person is not entitled to compensation.

71 Commissioner bound by medical panel's determination of medical questions

(1)  If a medical panel has determined a medical question in relation to a person who has a compensable disease, the Commissioner is to treat the determination of the medical question as conclusive evidence of the medical question.

(2)  Without limiting the generality of subsection (1) , if a medical panel has determined that –

(a) a person has an imminently fatal asbestos-related disease; or

(b) a person has a non-imminently fatal asbestos-related disease –

the Commissioner, in determining under section 70 an application for compensation relating to the person, must include in that determination, in accordance with section 70(2) , a corresponding determination.

(3)  Despite subsections (1) and (2) , if a medical panel –

(a) makes a determination that a person has a non-imminently fatal asbestos-related disease; and

(b) then makes a subsequent determination that the person has an imminently fatal asbestos-related disease –

subsections (1) and (2) only apply in relation to the subsequent determination.

(4)  Despite subsections (1) and (2) , if a medical panel –

(a) makes a determination in relation to a medical question in respect of a person; and

(b) then makes a subsequent determination in relation to the medical question in respect of the person –

subsections (1) and (2) only apply in relation to the subsequent determination.

Part 7 Compensation Payable to Person Who Has Compensable Disease

72 Compensation payable to person who has imminently fatal compensable disease

(1)  Subject to this Act, the compensation payable under this Act to a person –

(a) who has a compensable disease that was, before the commencement day, correctly diagnosed by a medical specialist to be an asbestos-related disease; and

(b) who was notified of that diagnosis by the medical specialist; and

(c) in relation to whom the Commissioner or the Tribunal has made a determination under this Act that the person has an imminently fatal asbestos-related disease –

is a lump sum equivalent to the relevant amount in relation to the person.

(2)  For the purposes of subsection (1) , the relevant amount in relation to a person is the total of –

(a) 360 compensation units; and

(b) the number of compensation units, determined in accordance with regulations prescribed for the purposes of this subsection, for a person of the age of the person on the commencement day.

(3)  Subject to this Act, the compensation payable under this Act to a person –

(a) to whom subsection (1) does not apply; and

(b) who has a compensable disease that was, after the commencement day, correctly diagnosed by a medical specialist to be an asbestos-related disease; and

(c) who was notified of that diagnosis by the medical specialist; and

(d) in relation to whom the Commissioner or the Tribunal has made a subsequent determination under this Act that the person has an imminently fatal asbestos-related disease –

is a lump sum equivalent to the relevant amount in relation to the person.

(4)  For the purposes of subsection (3) , the relevant amount in relation to a person is the total of –

(a) 360 compensation units; and

(b) the number of compensation units, determined in accordance with regulations prescribed for the purposes of this subsection, for a person of the age of the person on the day on which the person is first notified, by a medical specialist who has correctly diagnosed that the person has an imminently fatal asbestos-related disease, that the person has the disease.

(5)  If –

(a) a person who has a compensable disease is notified that the person has an imminently fatal asbestos-related disease by a medical specialist who has correctly diagnosed that the person has an imminently fatal asbestos-related disease; and

(b) the person is subsequently notified by that medical specialist or another medical specialist, that the person has an imminently fatal asbestos-related disease –

the reference in subsection (4) to the day on which the person is notified that the person has an imminently fatal asbestos-related disease is to be taken to be a reference to the first day on which the person is notified as referred to in paragraph (a) .

(6)  Despite any other provision of this section, if the Commissioner has paid compensation by way of a lump sum under this Act to a person –

(a) who has a compensable disease; and

(b) in relation to whom the Commissioner or the Tribunal made, before making a determination under this Act that the person has an imminently fatal asbestos-related disease, a determination under this Act that the person has a non-imminently fatal asbestos-related disease –

the amount of compensation payable to the person by way of lump sum under this section is to be reduced by the amount of any lump sum already paid to the person under this Act.

73 Compensation payable to person who has non-imminently fatal compensable disease

(1)  Subject to this Act, the compensation payable under this Act to a person –

(a) who has a compensable disease; and

(b) who has a degree of impairment of 10% or more because of an asbestos-related disease; and

(c) in relation to whom the Commissioner or the Tribunal has made a determination under this Act that the person has a non-imminently fatal asbestos-related disease; and

(d) in relation to whom the Commissioner or the Tribunal has not made a subsequent determination under this Act that the person has an imminently fatal asbestos-related disease –

is a lump sum equivalent to the relevant amount in relation to the person.

(2)  For the purposes of subsection (1) , the relevant amount in relation to a person is 360 compensation units, less –

(a) if the person has a degree of impairment,because of one or more asbestos-related diseases, of less than 26%, 240 compensation units; and

(b) if the person has a degree of impairment, because of one or more asbestos-related diseases, of 26% or more but less than 51% , 120 compensation units –

together with weekly payments, if any, to which the person is entitled under Division 3 .

(3)  Despite any other provision of this section, if the Commissioner has paid compensation by way of a lump sum under this Act to a person –

(a) who has a compensable disease; and

(b) in relation to whom the Commissioner or the Tribunal made, before making a determination under this Act that the person has a non-imminently fatal asbestos-related disease, a determination under this Act that the person has an imminently fatal asbestos-related disease –

the amount of compensation payable to the person by way of lump sum under this section is to be reduced by the amount of any lump sum already paid to the person under this Act.

74 Person with increased impairment of less than 51% may apply for variation of lump sum compensation

(1)  Subsection (2) applies to a person if –

(a) the Commissioner has made a determination under section 70 that the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has not made a subsequent determination under section 70 that the person has an imminently fatal asbestos-related disease; and

(c) the person has a degree of impairment, because of one or more asbestos-related diseases, of 26% or more but less than 51%; and

(d) the person has not received a lump sum equivalent to more than 120 compensation units in accordance with section 73(2) .

(2)  If this subsection applies to a person, the person may, by lodging with the Commissioner an application in the approved form, apply to the Commissioner for an additional amount to be paid to the person by way of lump sum under section 75 by virtue of the fact that the degree of impairment of the person because of one or more asbestos-related diseases is 26% or more but less than 51%.

(3)  Subsection (2) applies to a person in relation to an asbestos-related disease, whether or not it is the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person.

(4)  An application under subsection (2) by a person is to be accompanied by –

(a) a determination made under section 45(3) by an accredited impairment assessor; or

(b) a certificate of an accredited impairment assessor –

to the effect that the person has a degree of impairment, because of one or more asbestos-related diseases, of 26% or more but less than 51%.

75 Variation of lump sum compensation because of increased impairment of less than 51%

(1)  The Commissioner must determine an application made under section 74  –

(a) by granting the application; or

(b) by refusing to grant the application.

(2)  The Commissioner, after receiving an application made by a person under section 74 , may refer to an accredited impairment assessor under section 45 the medical question as to the degree of impairment of the person.

(3)  If it appears to the Commissioner that –

(a) the degree of impairment of a person who made an application under section 74 is,because of one or more asbestos-related diseases, 26% or more but less than 51%; and

(b) part or all of the degree of impairment of the person is because of a disease ("the secondary disease") that is not the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person –

the Commissioner must, before determining under subsection (1) the application, refer to a medical panel under section 47(3) the question as to whether the secondary disease is an asbestos-related disease.

(4)  The Commissioner must determine in accordance with subsection (1)(a) an application made by a person under section 74 if the person has not received a lump sum equivalent to more than 120 compensation units in accordance with section 73(2) and the Commissioner –

(a) is satisfied, having regard to –

(i) a determination made under section 45(3) by an accredited impairment assessor; or

(ii) a medical certificate of an accredited impairment assessor –

that the degree of impairment of the person, because of one or more asbestos-related diseases, is 26% or more but less than 51%; or

(b) where subsection (3) applies, receives from a medical panel a determination to the effect that the degree of impairment, because of one or more asbestos-related diseases, of the person is 26% or more but less than 51%.

(5)  Subsection (4) applies to a person in relation to an asbestos-related disease whether or not it is the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person.

(6)  The Commissioner must notify in writing a person in relation to whom a determination is made under subsection (1) of the determination of the Commissioner.

(7)  If the Commissioner determines in accordance with subsection (1)(a) an application made under section 74 by a person, the Commissioner must determine that the person is to be paid an additional amount of compensation by way of a lump sum of an amount equivalent to 120 compensation units.

76 Person with increased impairment of 51% or more may apply for variation of lump sum compensation

(1)  Subsection (2) applies to a person if –

(a) the Commissioner has made a determination under section 70 that the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has not made a subsequent determination under section 70 that the person has an imminently fatal asbestos-related disease; and

(c) the person has a degree of impairment, because of one or more asbestos-related diseases, of 51% or more; and

(d) the person has not received, in accordance with section 73(2) , a lump sum equivalent to more than 240 compensation units.

(2)  If this subsection applies to a person, the person may, by lodging with the Commissioner an application in the approved form, apply to the Commissioner for an additional amount of compensation to be paid to the person by way of lump sum under section 77 by virtue of the fact that the degree of impairment of the person because of one or more asbestos-related diseases is 51% or more.

(3)  Subsection (2) applies to a person in relation to an asbestos-related disease, whether or not it is the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person.

(4)  An application under subsection (2) by a person is to be accompanied by –

(a) a determination made under section 45(3) by an accredited impairment assessor; or

(b) a medical certificate given by an accredited impairment assessor –

to the effect that the person has a degree of impairment, because of one or more asbestos-related diseases, of 51% or more.

77 Variation of lump sum compensation because of increased impairment of 51% or more

(1)  The Commissioner must determine an application made under section 76  –

(a) by granting the application; or

(b) by refusing to grant the application.

(2)  The Commissioner, after an application is made under section 76 by a person, may refer to an accredited impairment assessor under section 45 the medical question as to the degree of impairment of the person.

(3)  If it appears to the Commissioner that –

(a) the degree of impairment of a person who has made an application under section 76 is,because of one or more asbestos-related diseases, 51% or more; and

(b) part or all of the degree of impairment of the person is because of a disease ("the secondary disease") that is not the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person –

the Commissioner must, before determining under subsection (1) the application, refer to a medical panel under section 47(3) the question as to whether the secondary disease is an asbestos-related disease.

(4)  The Commissioner must determine in accordance with subsection (1)(a) an application made by a person under section 76 if the person has not received a lump sum equivalent to more than 240 compensation units in accordance with section 73(2) and the Commissioner –

(a) is satisfied, having regard to –

(i) a determination made under section 45(3) by an accredited impairment assessor; or

(ii) a medical certificate given by an accredited impairment assessor –

that the degree of impairment, because of one or more asbestos-related diseases, of the person is 51% or more; and

(b) where subsection (3) applies, receives from a medical panel a determination to the effect that the degree of impairment, because of one or more asbestos-related diseases, of the person is 51% or more.

(5)  Subsection (4) applies to a person in relation to an asbestos-related disease whether or not it is the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person.

(6)  The Commissioner must notify in writing a person in relation to whom a determination is made under subsection (1) of the determination of the Commissioner.

(7)  If –

(a) the Commissioner determines in accordance with subsection (1)(a) an application made under section 76 by a person; and

(b) the person has received an additional amount of compensation by way of lump sum of an amount equivalent to 120 compensation units in accordance with section 75(7)  –

the Commissioner must determine that the person is to be paid an additional amount of compensation by way of a lump sum of an amount equivalent to 120 compensation units.

(8)  If –

(a) the Commissioner determines in accordance with subsection (1)(a) an application made under section 76 by a person; and

(b) the person has not received an additional amount of compensation by way of a lump sum of an amount equivalent to 120 compensation units in accordance with section 75(7)  –

the Commissioner must determine that the person is to be paid an additional amount of compensation by way of a lump sum of an amount equivalent to 240 compensation units.

78 Time in which application under section 74 or section 76 is to be determined

(1)  The Commissioner, under section 75(1) or section 77(1) , is to determine an application made by a person under section 74 or section 76 , respectively, within 10 business days after receiving the application.

(2)  If the Commissioner, after receiving an application under section 74 or section 76 , refers to an accredited impairment assessor, in accordance with section 75(2) or section 77(2) , the medical question as to the degree of impairment of the person to whom the application relates –

(a) subsection (1) does not apply in relation to the application; and

(b) the Commissioner, under section 75(1) or section 77(1) , as the case may be, is to determine the application within 10 business days after receiving a determination of the medical question from the assessor.

(3)  If the Commissioner, after receiving from a person an application under section 74 or section 76 , has, under section 75(3) or section 77(3) , referred to a medical panel a medical question in relation to the person –

(a) subsection (1) does not apply in relation to the application; and

(b) the Commissioner, under section 75(1) or section 77(1) , as the case may be, is to determine the application within 10 business days after receiving a determination of the medical question from the medical panel.

(4)  Subsection (5) applies in relation to an application under section 74 or section 76 by a person if the Commissioner has –

(a) in accordance with section 75(2) or section 77(2) , referred to an accredited impairment assessor a medical question in relation to the person or, in accordance with section 75(3) or section 77(3) , referred a medical question in relation to the person to a medical panel; and

(b) in a notice under section 82(2) , requested the person to provide further information that relates to a medical question.

(5)  If this subsection applies in relation to an application under section 74 or section 76 by a person –

(a) subsections (1) , (2) and (3) do not apply in relation to the application; and

(b) the Commissioner, under section 75(1) or section 77(1) , as the case may be, is to determine the application within 10 business days after the Commissioner receives both –

(i) the determination of the accredited impairment assessor or the medical panel, as the case may be; and

(ii) the further information requested.

79 Person with increased incapacity may apply for variation of weekly payments

(1)  Subsection (2) applies to a person if –

(a) the Commissioner has made a determination under section 70 that the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has not made a subsequent determination under section 70 that the person has an imminently fatal asbestos-related disease.

(2)  If this subsection applies to a person, the person may apply to the Commissioner for weekly payments, or an increase in the amount of weekly payments, to be paid to the person under this Act by lodging with the Commissioner an application in the approved form.

(3)  Subsection (2) applies to a person in relation to an asbestos-related disease whether or not it is the same disease as the disease in relation to which a determination was made under section 70 that compensation was payable to the person.

(4)  An application under subsection (2) by a person is to be accompanied by a medical certificate from a medical practitioner as to the degree of incapacity of the person.

80 Variation of weekly payments because of increased incapacity

(1)  The Commissioner must determine an application made under section 79  –

(a) by granting the application; or

(b) by refusing to grant the application.

(2)  The Commissioner, after receiving an application under section 79 from a person –

(a) may refer to a medical practitioner the medical question as to the degree of incapacity of the person; and

(b) may refer to a medical panel the medical question as to the degree of incapacity of the person.

(3)  If the Commissioner is of the opinion that the degree of incapacity of a person to whom an application under section 79 relates has increased because of a different disease ("the secondary disease") from the disease in relation to which a determination was made in relation to the person under section 70 , the Commissioner must refer to a medical panel the medical question as to whether the secondary disease is an asbestos-related disease.

(4)  If the Commissioner is satisfied, having regard to –

(a) a medical certificate given by a medical practitioner; or

(b) a determination of a medical panel –

that the degree of incapacity of a person to whom an application under section 79 relates has increased because of an asbestos-related disease, the Commissioner must determine the application in accordance with subsection (1)(a) .

(5)  Subsection (4) applies to a person in relation to an asbestos-related disease whether or not it is the same disease as the disease in relation to which the determination that compensation was payable to the person was made under section 70 .

(6)  The Commissioner must notify in writing a person in relation to whom a determination is made under subsection (1) of the determination of the Commissioner.

(7)  If the Commissioner determines in accordance with subsection (1)(a) an application made under section 79 by a person, the Commissioner must determine that the weekly payments of the person are to be increased to reflect the degree of incapacity that the person has at the time of the application.

81 Time in which application under section 79 is to be determined

(1)  The Commissioner, under section 80(1) , is to determine an application by a person under section 79 within 10 business days after receiving the application.

(2)  If the Commissioner, after receiving from a person an application under section 79 , refers a medical question in relation to the person to a medical practitioner in accordance with section 80(2)  –

(a) subsection (1) does not apply in relation to the application; and

(b) the Commissioner, within 10 business days after receiving a determination of the medical question from the medical practitioner, is to –

(i) determine under section 80(1) the application; or

(ii) refer the medical question to a medical panel.

(3)  If the Commissioner, after receiving from a person an application under section 79 , refers a medical question in relation to the person to a medical panel in accordance with section 80(2) or (3) or subsection (2)(b)(ii)  –

(a) subsection (1) does not apply in relation to the application; and

(b) the Commissioner is to determine under section 80(1) the application within 10 business days after receiving a determination of the medical question from the medical panel.

(4)  Subsection (5) applies in relation to an application under section 79 by a person if the Commissioner has –

(a) referred a medical question in relation to the person to a medical practitioner or medical panel in accordance with section 80(2) or (3) or subsection (2)(b)(ii) ; and

(b) in a notice under section 82(2) , requested the person to provide further information that relates to a medical question.

(5)  If this subsection applies in relation to an application under section 79 by a person –

(a) subsections (1) , (2) and (3) do not apply in relation to the application; and

(b) the Commissioner is to determine under section 80(1) the application within 10 business days after the Commissioner receiving both –

(i) the determination of the medical practitioner or medical panel, as the case may be; and

(ii) the further information requested.

82 Commissioner may request further information be provided

(1)  This section applies in relation to an application made under section 74 , section 76 or section 79 if the Commissioner is not satisfied that there is sufficient information available to the Commissioner to enable the Commissioner to determine the application under section 75 , section 77 or section 80 , respectively.

(2)  The Commissioner may, by notice to a person who has made an application to which this section applies –

(a) request the person to provide to the Commissioner the further information specified in the notice; and

(b) specify in the notice a date by which the information must be provided to the Commissioner; and

(c) notify the person that –

(i) the Commissioner may refuse to consider the application until the further information is provided to the Commissioner; and

(ii) if the further information is not provided to the Commissioner by the date specified in the notice in accordance with paragraph (b) , the Commissioner may reject the application.

(3)  A date specified in a notice for the purposes of subsection (2)(b) is not to be earlier than 40 business days after the notice is issued.

(4)  If the Commissioner has issued a notice under subsection (2) to a person requiring the person to provide further information to the Commissioner in relation to an application to which this section applies –

(a) the Commissioner may refuse to consider the application until the further information is provided to the Commissioner; or

(b) the Commissioner may reject the application if the information is not provided by the person by the date specified in the notice in accordance with subsection (2)(b) .

(5)  The rejection by the Commissioner of an application made by a person under section 74 , section 76 or 79 does not prevent a further application being made under that section by the person.

83 Interpretation of Division 3

In this Division –

normal weekly earnings, in relation to a person who is incapacitated for work, means the average weekly earnings of the person during the relevant period;

period of incapacity, in relation to a person, means –

(a) a period of incapacity for work, whether partial incapacity, total incapacity or a combination of partial incapacity and total incapacity; and

(b) in the case of separate periods of incapacity for work resulting from one or more asbestos-related diseases, the aggregate of those periods;

relevant period, in relation to a person, means –

(a) if the person has been continuously employed by the same employer as a worker for 12 months or more before making an application for compensation, the 12 months immediately before the person made the application; or

(b) if the person has been continuously employed by the same employer as a worker for less than 12 months before making an application for compensation, the period for which he or she was employed immediately before the person made the application; or

(c) if section 84(3)(b) applies to the person, the aggregate of the period of 6 months referred to in that provision.

84 Entitlement to weekly payments

(1)  Subject to this Act, a person who has a compensable disease is entitled to be paid weekly payments under this Division for a period of incapacity if the Commissioner determines that the person is so entitled.

(2)  The Commissioner may determine that a person is entitled to be paid weekly payments under this Division for a period of incapacity if –

(a) the Commissioner has determined under section 70 an application for compensation by the person by determining that –

(i) the person is entitled to compensation; and

(ii) the person has a non-imminently fatal asbestos-related disease; and

(b) the Commissioner has not determined under section 70 an application for compensation by the person by determining that –

(i) the person is entitled to compensation; and

(ii) the person has an imminently fatal asbestos-related disease; and

(c) the Commissioner is satisfied, having regard to a medical certificate received from a medical practitioner, that the person is, for that period of incapacity, partially or totally incapacitated for work as a result of an asbestos-related disease; and

(d) the person is an eligible person in respect of the application for compensation.

(3)  For the purposes of subsection (2)(d) , a person is an eligible person in respect of an application for compensation if, on the date on which the person makes the application –

(a) the person was employed as a worker for at least 2 months immediately before the person made the application; or

(b) the person –

(i) had, for a total of 6 months (whether or not the 6 months consist of consecutive periods) in the 12-month period before the application for compensation is made, been employed as a worker; and

(ii) would have been employed as a worker on the date on which the person made the application for compensation, but for the effects of one or more asbestos-related diseases.

(4)  A person is not to be taken to be a worker for the purposes of subsection (3) if he or she is, under this Act, a worker for the purposes of that subsection by reason only of being a volunteer.

85 Amount of weekly payments

(1)  The weekly payments to which a person is entitled to be paid in accordance with section 84(1) are, if the person is totally incapacitated for work, weekly payments equal to whichever of the following is the greater:

(a) the normal weekly earnings of the person;

(b) the ordinary time rate of pay of the person for the work in which, and for the hours during which, the person was engaged during the relevant period.

(2)  The weekly payments to which a person is entitled in accordance with section 84(1) are, if the person is partially incapacitated for work, weekly payments for the period of incapacity equal to the difference between –

(a) the amount of weekly payment to which the person would have been entitled under subsection (1) if he or she had been totally incapacitated; and

(b) the amount that the person is earning, or would be able to earn in suitable employment or business, during the period of incapacity.

(3)  If, during the period of incapacity of the person, the ordinary hourly rate of pay –

(a) for the work in which the person was engaged immediately before the commencement of that period; and

(b) for the hours during which the person was engaged immediately before the commencement of that period –

increases or decreases in accordance with the person's entitlement under the person's contract of employment or industrial instrument, the weekly payment to which the person is entitled is to be increased or decreased by the same amount.

86 Matters to be taken into account in calculating weekly payments

(1)  In fixing in accordance with section 85 the amount of the weekly payment to a person under section 84 , regard is to be had to any relevant payment, allowance, or benefit, to the person.

(2)  For the purposes of subsection (1) , a relevant payment, allowance, or benefit, to a person –

(a) includes a payment, allowance, or benefit, that the person would, if he or she remained employed after he or she made his or her application for compensation, receive in respect of his or her employment during the period of incapacity; and

(b) does not include a payment, allowance, or benefit, paid in respect of a period of long service leave or of any entitlement to long service leave or in lieu of the taking of a period of long service leave.

(3)  This subsection applies to a person if the person –

(a) has so far recovered from an asbestos-related disease as to be fit for employment, but only for employment of a more limited kind than the employment in which he or she was engaged during the relevant period; and

(b) satisfies the Commissioner –

(i) that the person has taken all reasonable steps to obtain, and has failed to obtain, employment of the more limited kind referred to in paragraph (a) ; and

(ii) that the person's failure to obtain that employment is a consequence wholly or mainly of his or her having an asbestos-related disease.

(4)  If subsection (3) applies to a person, the Commissioner may determine that the person's incapacity is to continue to be treated as total incapacity for the period, and subject to the conditions, that the Commissioner thinks fit.

(5)  If a determination is made under subsection (4) ,weekly payments are payable to the person in accordance with this Division on the making of the determination.

(6)  Subsections (4) and (5) apply to a person despite –

(a) any other provision of this Act; or

(b) any earlier determination of the Commissioner or the Tribunal under this Act in relation to the person.

(7)  In determining the amount of weekly payments payable under section 84 or this section, no regard is to be had to any sum paid or payable –

(a) under any contract of assurance or insurance, including a contract made with a friendly society or other benefit society or association or a trade union; or

(b) out of any relief, superannuation, or sustentation fund, or other fund (whether statutory or otherwise) of a kind similar to a contract referred to in paragraph (a) .