9.7 Where Damages Recovered via State Laws ('specified law' and S119)

Certain Australian State governments have passed laws that provide compensation to the victims of road accidents or for losses due to criminal activity etc. These Acts do not refer to 'workers' per se and are not Workers Compensation Acts (workers compensation acts are dealt with by section 118 - see 9.9. They relate to injuries and loss of ordinary citizens. The provision of compensation under those Acts is as the result of administrative decisions enabled by those Acts and not by a legal 'action' of the dependent through the law courts, i.e. such as would be caught by S48.

However S119 of the SRCA deals with such compensation, i.e. S119(2) provides that:

119(2) Subject to this section, the compensation that is payable under this Act...for the benefit of the dependant in respect of the injury that resulted in the death,...is so much (if any) of the compensation under this Act that, but for this section, would be so payable as exceeds the amount of State compensation recovered...by, or for the benefit of the...dependant,...

This means that the amount of the State compensation entitlement must be deducted from the SRCA compensation entitlement and only the balance paid to the dependant. Naturally, where the State entitlement exceeds the SRCA entitlement nothing is payable under the SRCA.

Furthermore, S119(3) provides for cases where SRCA compensation had already been paid i.e. prior to receipt of money from a State Act:

119(3) Subject to this section, if, before the recovery of State compensation by or for the benefit of the...dependant, compensation under this Act was paid...for the benefit of the dependant in respect of the injury that resulted in the death,...the...dependant is liable to pay the relevant authority:

a)the amount of the compensation paid by it under this Act, or

b)the amount of the State compensation recovered...for the benefit of the dependant,

whichever is less.

Essentially this is the same as for S48, i.e. when the SRCA death benefit has been paid prior to the State death benefit (under the State 'specified law') MCRS must recover either:

• the whole SRCA death benefit where the amount of the State benefit exceeded it,
  or, alternatively
• an amount equal to the State benefit, i.e. where the SRCA benefit was the larger.

Note however that S119(5) says:

119(5) A reference in Subsection (3) to compensation under this Act that was paid for the benefit of a dependant does not include a reference to compensation under Subsection 17(5).

This means that, where compensation is to be recovered, amounts paid under S17(5) – i.e. weekly payments in respect of a 'prescribed child' are exempt, and are to be excluded from that recovery. Also S119(5) is framed in such a way that the S17(5) payments may continue while the child continues to be a 'prescribed child' i.e. regardless of payment under the 'specified Act'.

Section 119 refers to 'State compensation' which means compensation payable to the dependant under a 'specified law' of a State or Territory of the Commonwealth of Australia. The laws 'specified' by S119 are those declared in a Ministerial Notice last updated in 1989. This list (List A) applied from 1 December 1988 to 30 June 2007.  A revised list (List B) has applied since 1 July 2007(Note that they are not State Workers Compensation Acts.) Delegates should apply S119 to amounts received by the dependant through the action of the following 'specified Acts'

List A

New South Wales

Compensation to Relatives Act of 1897

Crimes Act 1990

Damage to Aircraft Act 1952

Civil Aviation (Carrier's Liability) Act 1978

Sporting Injuries Insurance Act 1978

Victims Compensation Act 1987

Transport Compensation Act 1987

Victoria

Civil Aviation (Carrier's Liability) Act 1961

Criminal Injuries Compensation Act 1972

Motor Accidents Act 1973

Transport Accident Act 1986

Queensland

The Criminal Code Act 1899

Western Australia

Criminal Code Compilation Act 1913

Fatal Accidents Act 1959

Civil Aviation (Carrier's Liability) Act 1961

Damage by Aircraft Act 1964

Criminal Injuries Compensation Act 1982

South Australia

Civil Aviation (Carrier's Liability) Act 1962

Criminal Injuries Compensation Act 1977–78

Tasmania

Criminal Code Act 1924

Fatal Accidents Act 1934

Civil Aviation (Carrier's Liability) Act 1963

Damage by Aircraft Act 1963

Motor Accidents (Liabilities and Compensation) Act 1973

Criminal Injuries Compensation Act 1976

A.C.T.

Crimes Act 1900 of the State of NSW in its application to the ACT

Criminal Injuries Compensation Ordinance 1983

Northern Territory

Compensation (Fatal Injuries) Act

Motor Accidents (Compensation) Act

Crimes Compensation Act 1982

List B

New South Wales

Compensation to Relatives Act of 1897

Crimes Act 1990

Damage by Aircraft Act 1952

Civil Aviation (Carrier's Liability) Act 1967

Motor Accidents Act 1988

Motor Accidents Compensation Act 1999

Sporting Injuries Insurance Act 1978

Victims Support and Rehabilitation  Act 1996

Victoria

Civil Aviation (Carrier's Liability) Act 1961

Motor Accidents Act 1973

Transport Accident Act 1986

Victims of Crime Assistance Act 1996

Queensland

Criminal Code Act 1899

Criminal Offence Victims Act 1995

Western Australia

Criminal Code Compilation Act 1913

Fatal Accidents Act 1959

Civil Aviation (Carrier's Liability) Act 1961

Damage by Aircraft Act 1964

Criminal Injuries Compensation Act 2003

South Australia

Civil Aviation (Carrier's Liability) Act 1962

Victim of Crimes Act 2001

Tasmania

Criminal Code Act 1924

Fatal Accidents Act 1934

Civil Aviation (Carrier's Liability) Act 1963

Damage by Aircraft Act 1963

Motor Accidents (Liabilities and Compensation) Act 1973

Criminal Injuries Compensation Act 1976

A.C.T.

Crimes Act 1900

Victims of Crime (Financial Assistance) Act 1983

Northern Territory

Compensation (Fatal Injuries) Act

Motor Accidents (Compensation) Act

Victims of Crime Assistance Act