5NBCompensation recovery definitions

#### 5NB Compensation recovery definitions (1) In this Act, unless the contrary intention appears: > average weekly earnings, in relation to a lump sum preclusion period, means the amount: (a) estimated as the average total weekly earnings, during a particular month, of all employees (all persons) in Australia; and (b) last published by the Australian Statistician before the lump sum compensation payment became payable. > Note: For lump sum preclusion period see subsections 59Q(3) to (7). > compensation has the meaning given by subsection (2). > Note: See also section 59O. > compensation affected pension means: (a) an invalidity service pension payable to a person who has not reached pension age; or (b) a partner service pension payable to a person who has not reached pension age; or (c) income support supplement payable to a person who has not reached qualifying age; or (d) a veteran payment payable to a person who has not reached pension age (within the meaning of subsections 5QB(2), (3), (4) and (5)); or (f) an education entry payment payable to a person who: (i) is receiving invalidity service pension or partner service pension; or (ii) is receiving income support supplement and has not reached qualifying age. > Note 1: For pension age see sections 5QA and 5QB. > Note 2: For qualifying age see section 5Q. > compensation part, in relation to a lump sum compensation payment, has the meaning given by subsections (7) and (8). > compensation payer means: (a) a person who is liable to make a compensation payment; or (b) an authority of a State or Territory that has determined that it will make a payment by way of compensation to another person, whether or not the authority is liable to make the payment. > event that gives rise to a person’s entitlement to compensation has the meaning given by subsection (11). > periodic payments period means: (a) the period to which a periodic compensation payment, or a series of periodic compensation payments, relates; or (b) in the case of a payment of arrears of periodic compensation payments—the period to which those payments would have related if they had not been made by way of arrears payment. > potential compensation payer means a person who, in the Commission’s opinion, may become a compensation payer. > receives compensation has the meaning given by subsection (10). Compensation (2) For the purposes of Part IIIC, compensation means: (a) a payment of damages or compensation; or (b) a payment under a scheme of insurance or compensation under a law of the Commonwealth or of a State or Territory, or under a contract entered into under such a scheme; or (c) a payment (with or without admission of liability) in settlement of a claim for damages or of a claim under such an insurance scheme; made wholly or partly in respect of lost earnings or lost capacity to earn. The payment may be in the form of a lump sum (or part of a lump sum) or in the form of periodic payments and may be made either within or outside Australia, but it does not include any payment that, under subsection (3), (4), (5), (6) or (6A), is excluded from the application of this subsection. > Note: Under section 59O, a person may be treated as having received compensation that the person would have received but for the effect of a State or Territory law. (3) Subsection (2) does not apply to a periodic payment or a lump sum payment referred to in paragraph 26(1)(b) or (2)(b) or subsection 30(3). (4) Subsection (2) does not apply to a compensation payment if: (a) the recipient has made contributions (for example, by way of insurance premiums) towards the payment; and (b) either: (i) the agreement under which the contributions are made does not provide for the amounts that would otherwise be payable under the agreement being reduced or not payable because the recipient is eligible for or receives the compensation affected pension under this Act; or (ii) the agreement does so provide but the compensation payment has been calculated without reference to the provision. (5) Subsection (2) does not apply to any payment of compensation made to a person that was taken into account under Division 5A of Part II to reduce the amount, or stop the payment, of a pension that, apart from that Division, would have been payable to the person under that Part. (6) Subsection (2) does not apply to any payment of compensation made to a person that was taken into account under Division 4 of Part IV to reduce the amount, or stop the payment, of a pension that, apart from that Division, would have been payable to the person under that Part. (6A) A payment under a law of the Commonwealth, a State or a Territory that provides for the payment of compensation for a criminal injury does not constitute compensation for the purposes of this Act. (6B) The reference in subsection (6A) to a criminal injury is a reference to a personal injury suffered, or a disease or condition contracted, as a result of the commission of an offence. Compensation part of a lump sum (7) Subject to subsection (8), for the purposes of Part IIIC, the compensation part of a lump sum compensation payment is: (a) 50% of the payment if the following circumstances apply: (i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and (ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or (b) 50% of the payment if the following circumstances apply: (i) the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and (ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and (iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or (c) if paragraphs (a) and (b) do not apply—so much of the payment as is, in the Commission’s opinion, in respect of lost earnings or lost capacity to earn, or both. (8) If a person: (a) has received periodic compensation payments in respect of lost earnings or lost capacity to earn; and (b) after receiving those payments, receives a lump sum compensation payment in respect of the lost earnings or lost capacity to earn (the LSP); and (c) because of receiving the LSP, becomes liable to repay an amount (the Repaid Periodic Compensation Payment—RPCP) equal to the periodic compensation payments received; then, for the purposes of subsection (7), the amount of the lump sum compensation payment is:  (9) For the purposes of Part IIIC, a payment of arrears of periodic compensation payments is not a lump sum compensation payment. > Note: For the treatment of a payment of arrears of periodic compensation payments where, at the time of the event that gave rise to the compensation payments, the person was receiving a payment under this Act that is covered by Part IIIC, see point SCH6‑E4. Receives compensation (10) A person receives compensation whether he or she receives it directly or whether another person receives it, on behalf of, or at the direction of the first person. Event giving rise to entitlement (11) For the purposes of Part IIIC, the event that gives rise to a person’s entitlement to compensation for a disease, injury or condition is: (a) if the disease, injury or condition was caused by an accident—the accident; or (b) in any other case—the disease, injury or condition first becoming apparent; and is not, for example, the decision or settlement under which the compensation is payable. Insurer (12) A reference in Part IIIC to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer against a liability arising from a claim for compensation includes a reference to: (a) an authority of a State or Territory that is liable to indemnify a compensation payer against such a liability, whether the authority is so liable under a contract, a law or otherwise; or (b) an authority of a State or Territory that determines to make a payment to indemnify a compensation payer against such a liability, whether or not the authority is liable to do so.