Queensland: National Injury Insurance Scheme (Queensland) Act 2016 (Qld)

National Injury Insurance Scheme (Queensland) Act 2016 An Act to provide for a scheme for the treatment, care and support of persons seriously injured in motor accidents Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the National Injury Insurance Scheme (Queensland) Act 2016. 2 Commencement (1) The following provisions commence on a day to be fixed by proclamation— (a) chapter 4, part 2; (b) chapter 10, part 1 and part 2, division 2, subdivision 3. (2) The remaining provisions of this Act commence on 1 July 2016. Part 2 Purpose and application 3 Purpose of Act and achieving purpose (1) The purpose of this Act is to ensure that persons who suffer particular serious personal injuries as a result of a motor accident in Queensland receive necessary and reasonable treatment, care and support, regardless of fault. (2) The purpose is achieved by establishing— (a) a national injury insurance scheme, Queensland for— (i) assessing the treatment, care and support needed by participants in the scheme; and (ii) making payments for the treatment, care and support of participants; and (b) a National Injury Insurance Agency, Queensland to administer the scheme; and (c) a national injury insurance scheme fund, Queensland. 4 Application of Act (1) This Act applies in relation to a serious personal injury caused by, through or in connection with a prescribed vehicle, if— (a) the injury is a result of— (i) the driving of the prescribed vehicle; or (ii) a collision, or action taken to avoid a collision, with the prescribed vehicle; or (iii) the prescribed vehicle running out of control; or (iv) a defect in the prescribed vehicle causing loss of control of the vehicle while the vehicle is being driven; and (b) the incident (the motor accident) resulting in the injury happens in Queensland on or after 1 July 2016. (2) However, this Act does not apply in relation to a serious personal injury caused by, through or in connection with an uninsured motor vehicle, other than a prescribed vehicle stated in subsection (3)(a), unless the motor accident resulting in the injury happens on a road or public place. (3) Also, this Act does not apply in relation to a serious personal injury caused by, through or in connection with— (a) any of the following prescribed vehicles unless the motor accident resulting in the injury happens on a road— (i) a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery; (ii) an agricultural machine; (iii) a motor vehicle adapted to run on rail or tram tracks; (iv) an amphibious vehicle; (v) a motor vehicle prescribed by regulation; or (b) a prescribed vehicle that, at the particular time of the motor accident resulting in the injury, is being used for the actual doing of an act or making of a threat that is an act of terrorism. (4) In this section— act of terrorism see the Insurance Act, section 4B. agricultural machine means a machine with its own automotive power that is— (a) built to perform agricultural tasks; and (b) being used for agricultural purposes. Examples— tractors and harvesters being used for agricultural purposes mobile machinery see the Insurance Act, section 4. public place see the Transport Operations (Road Use Management) Act 1995, schedule 4. road see the Transport Operations (Road Use Management) Act 1995, schedule 4. uninsured motor vehicle means a prescribed vehicle— (a) for which a CTP insurance policy is not in force; and (b) of which a self-insurer is not the registered owner; and (c) that is not a trailer. 5 Act binds all persons (1) This Act binds all persons, including the State, and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. (2) However, the State, the Commonwealth or another State can not be prosecuted for an offence against this Act. Part 3 Interpretation 6 Definitions The dictionary in schedule 1 defines particular words used in this Act. 7 Meaning of prescribed vehicle A prescribed vehicle is— (a) a motor vehicle or a trailer for which a CTP insurance policy is in force; or (b) a trailer to which a CTP insurance policy extends; or (c) a motor vehicle of which a self-insurer is the registered owner; or (d) a trailer for which a self-insurer would be the insurer under the Insurance Act or a corresponding law if the trailer were involved in an incident in Queensland resulting in personal injury; or (e) a motor vehicle or a trailer to which a nominal defendant scheme would apply if the motor vehicle or trailer were involved in an incident in Queensland resulting in personal injury. 8 Meaning of treatment, care and support needs The treatment, care and support needs of a person are the person's needs for, or relating to, 1 or more of the following— (a) medical or pharmaceutical treatment; (b) dental treatment; (c) rehabilitation; (d) ambulance transportation; (e) respite care; (f) attendant care and support services; (g) aids and appliances, other than ordinary personal or household items; Examples of ordinary personal or household items— an air conditioner, a laptop, linen, a mobile phone, a personal computer or a washing machine (h) prosthesis; (i) education or vocational training; (j) home or transport modification. 9 Meaning of excluded treatment, care and support (1) Excluded treatment, care and support is treatment, care and support that— (a) is provided without charge; or (b) if the participant is a child—ordinarily falls within the ordinary costs of raising a child; or (c) must be provided by a registered provider but is provided by a person who, at the time of provision, is not a registered provider; or (d) is provided as part of a medical trial or on another experimental basis; or (e) is provided as part of a public sector health service, as defined in the Hospital and Health Boards Act 2011, schedule 2; or (f) is provided by State emergency services, including the Queensland Ambulance Service, Queensland Fire and Rescue or Rural Fire Service Queensland; or (g) is prescribed by regulation. (2) For subsection (1)(c), the following treatment, care and support must be provided by a registered provider— (a) attendant care and support services that are personal assistance services or services to assist a person to participate in the community; (b) any other treatment, care or support prescribed by regulation. (3) However, subsection (2)(a) does not apply if the treatment, care and support is being provided to a person at a hospital (whether as an inpatient or an outpatient) as part of the services provided by the hospital. 10 When a claim is finalised For this Act, a claim against an insurer is finalised if— (a) the claim has been settled by agreement and, if the agreement must, under another Act, be sanctioned by a court or the public trustee, the sanction has been given; or (b) final judgment has been given by a court on an action for damages in relation to the claim and, if an award of damages under the final judgment must, under another Act, be sanctioned by a court or the public trustee, the sanction has been given. 11 References in Act to particular terms (1) In a provision of this Act about an application, a reference to— (a) the applicant is a reference to the person who made the application; and (b) the injured person is a reference to the injured person the subject of the application; and (c) the serious personal injury is a reference to the serious personal injury the subject of the application. (2) In a provision of this Act about a participant in the scheme, a reference to— (a) the participant's injury is a reference to the serious personal injury in relation to which the participant is accepted into the scheme; and (b) the motor accident is a reference to the motor accident that resulted in the participant's injury. (3) In a provision of this Act about a service request or a payment request, a reference to the participant is a reference to the participant the subject of the request. (4) In a provision of this Act about the giving of a notice or other document to or by a participant or an injured person, a reference to the participant or injured person includes a reference to— (a) if the participant or injured person is a child—the child's parent or guardian; or (b) otherwise—a person acting for the participant or injured person. (5) In a provision of this Act about the giving of a notice or other document to or by an insurer against whom a claim has been made, a reference to the insurer is a reference to the claim manager under the Insurance Act, section 38, if 2 or more insurers may be liable on the claim. Chapter 2 National injury insurance scheme, Queensland Part 1 Preliminary 12 Persons eligible to participate in scheme (1) A person is eligible to participate in the scheme in relation to a serious personal injury suffered by the person if— (a) this Act applies in relation to the injury; and (b) the injury meets the criteria (the eligibility criteria) for the injury prescribed by regulation. (2) However, a person is not eligible to participate in the scheme in relation to a serious personal injury if— (a) the person has been awarded damages, under a final judgment of a court or a binding settlement, in relation to the person's treatment, care and support needs as a result of the injury; and (b) the damages were paid other than by way of a payment by the agency under section 44(3)(a). (3) Also, a person is not eligible to participate in the scheme in relation to a serious personal injury if— (a) before the motor accident resulting in the serious personal injury, the person suffered from another injury or condition; and (b) the serious personal injury does not permanently increase the extent of any disability experienced by the person before the motor accident. 13 Persons may buy into scheme in particular circumstances (1) This section applies to a person who— (a) suffers a serious personal injury prescribed by regulation; and (b) is not eligible under section 12 to participate in the scheme in relation to the injury. (2) The agency may decide to accept the person as a participant in the scheme in relation to the injury for a period agreed between the person and the agency. (3) If the person is accepted as a participant under subsection (2), the person must pay to the agency a contribution, calculated in the way prescribed by regulation, towards the person's treatment, care and support needs as a result of the injury. (4) If the contribution is not paid within 28 days after the person is accepted as a participant, the person— (a) stops being a participant; and (b) is taken to have never been a participant. (5) The following provisions do not apply to the person— (a) part 4, division 4; (b) part 5; (c) section 52. (6) A regulation may make provision about accepting persons as participants in the scheme under this section, including by prescribing any of the following matters— (a) the circumstances in which an application (a buy-in application) may be made to the agency for approval to participate in the scheme under this section; (b) the requirements for making a buy-in application; (c) the matters the agency must consider in deciding a buy-in application; (d) the period for deciding a buy-in application; (e) when and how the agency must give notice of a decision on a buy-in application, including whether the notice must be an information notice; (f) how a contribution must be dealt with if the person stops being a participant. 14 Participants in scheme (1) A person is a participant in the scheme if the agency accepts the person as a participant in the scheme under— (a) section 13; or (b) section 22. (2) A participant is a lifetime participant if the agency accepts the person as a participant for the rest of the person's life under— (a) section 22(3); or (b) section 46(4). (3) A participant is an interim participant if the agency accepts the person, under section 22(1)(a), as a participant in the scheme for the participation period. (4) A participant is a buy-in participant if the agency accepts the person, under section 13, as a participant in the scheme. (5) A person's participation in the scheme starts the day the person is accepted into the scheme. (6) A person's participation in the scheme ends— (a) if the person dies; or (b) if the person stops being a participant under this chapter; or (c) for a buy-in participant—at the end of the period mentioned in section 13(2); or (d) in the circumstances prescribed by regulation. 15 Necessary and reasonable treatment, care and support needs For this chapter, the agency must consider the following matters in deciding whether a person's treatment, care and support needs as a result of a serious personal injury are necessary and reasonable in the circumstances— (a) whether the treatment, care and support needs are excluded treatment, care and support; (b) any other matter prescribed by regulation. Part 2 Application to participate in scheme Division 1 Making application 16 Application for approval (1) A person may apply to the agency for approval to participate in the scheme in relation to a serious personal injury suffered by the person as a result of a motor accident. (2) If the application is made within 1 year after the motor accident happened (the application period), the agency must accept the application. (3) If the application is made after the application period, the agency must decide whether or not to accept the application. (4) In making a decision under subsection (3), the agency must consider whether it would be fair and reasonable in the circumstances to accept the application, having regard to— (a) whether the person is likely to be eligible to participate in the scheme; and (b) whether a claim has been made, or can be made, for the serious personal injury; and (c) the nature and severity of the person's injury. (5) If the agency decides not to accept an application, the agency must give the applicant an information notice for the decision. 17 When application may not be made (1) An application may not be made in relation to an injured person's serious personal injury if— (a) another person has made an application in relation to the injury and the application has not been decided; or (b) the injured person is an interim participant in relation to the injury. (2) Subsection (3) applies if— (a) an application has been made in relation to an injured person's serious personal injury and the application has been refused; or (b) an injured person was an interim participant in relation to a serious personal injury and the injured person's participation in the scheme has ended. (3) A person may not make an application in relation to the serious personal injury unless— (a) the person gives the agency medical information, not previously considered by the agency, about the injured person's injury or condition; or (b) the person gives the agency medical information showing that the injured person's condition as a result of the injury has deteriorated since the earlier application was made or the injured person's participation ended. (4) If an injured person, or a person acting for an injured person, has received a payment under section 44(3)(a) in relation to the injured person's serious personal injury— (a) an application in relation to the injury— (i) may be made only in the circumstances prescribed by regulation; and (ii) may not be made for a period, of at least 5 years after the payment is received, prescribed by regulation; and (b) section 16(2) and (3) do not apply to the making of the application. 18 When person other than injured person may make application (1) An application may be made for an injured person— (a) by an insurer against whom a claim has been made, if the claim— (i) relates to the injured person's serious personal injury; and (ii) has not been finalised; or (b) if the injured person is a child—by the child's parent or guardian; or (c) by another person who is acting for the injured person. (2) If an insurer makes an application for an injured person, the insurer must give the person a copy of the application. 19 Requirements for application (1) An application must— (a) be in the approved form; and (b) include or be accompanied by the information prescribed by regulation. (2) Subsections (3) and (4) apply if an application is made by a person other than an insurer. (3) The application must state that the applicant permits the agency to exchange information about the injured person with an entity prescribed by regulation for the purpose of the agency performing its functions under this Act, including, in particular— (a) deciding whether or not the person is eligible to participate in the scheme; and (b) if it is decided that the person is eligible to participate in the scheme— (i) deciding whether the person is to be a lifetime participant or an interim participant; and (ii) assessing the treatment, care and support needed by the person; and (iii) reviewing the person's participation in the scheme. (4) If the injured person, or a person acting for the injured person, has made, or intends to make, a claim against an insurer for the serious personal injury, the application must also state— (a) that the person has made, or intends to make, the claim; and (b) if the claim has been made— (i) the day the claim was made; and (ii) the status of the claim; and (c) the insurer against whom the claim was, or is intended to be, made. 20 Notifying insurer about application (1) This section applies if an application— (a) is made by a person other than an insurer; and (b) states that— (i) a claim has been made against an insurer for the serious personal injury; and (ii) the claim has not been finalised. (2) The agency must give notice of the application to the insurer. (3) The notice must— (a) state the name of the injured person; and (b) state the day the application was made; and (c) include a brief description of the serious personal injury; and (d) state the day the motor accident resulting in the injury happened. 21 Information request (1) The agency may, by notice (an information request), ask any of the following persons to give further information needed to decide an application— (a) the applicant; (b) if the applicant is not the injured person—the injured person. (2) The information request must be made within 28 days after the application is received. Division 2 Deciding application 22 Deciding application (1) After receiving an application, the agency must— (a) if the injured person is eligible to participate in the scheme in relation to the serious personal injury—accept the person as a participant in the scheme in relation to the injury for the participation period; or (b) otherwise—refuse the application. (2) Subsection (3) applies if the agency is satisfied that the serious personal injury is likely to continue to meet the eligibility criteria for the injury after the participation period ends. (3) The agency may, instead of accepting the injured person as a participant for the participation period, accept the injured person as a participant in the scheme for the rest of the person's life. (4) Subsections (5) and (6) apply if— (a) the injured person, or a person acting for the injured person, has received a payment from the agency under section 44(3)(a) in relation to the serious personal injury; and (b) the agency is not satisfied that the injured person is suffering severe financial hardship. (5) Despite subsection (1)(a), the agency may refuse the application. (6) If the agency decides to accept the injured person as a participant in the scheme, the acceptance may be subject to conditions. (7) A decision under this section must be made within the decision-making period. (8) However, the agency may, by notice given to the applicant and without the applicant's agreement, extend the decision-making period by not more than 28 days. (9) A notice given under subsection (8) must state the reason for the extension. 23 Notice of decision (1) The agency must give notice of a decision on an application to— (a) the applicant; and (b) if the applicant is not the injured person—the injured person; and (c) if a claim, other than a finalised claim, has been made against an insurer for the serious personal injury and the insurer is not the applicant—the insurer. (2) If the agency refuses the application, or accepts the injured person on conditions, the notice must be an information notice. 24 Failure to decide application (1) If the agency fails to decide an application within the decision-making period, the failure is taken to be a decision by the agency to refuse the application. (2) If the application is taken to be refused under this section, each person mentioned in section 23(1) is entitled to be given an information notice by the agency for the decision. (3) In this section— decision-making period includes an extension of the decision-making period under section 22(8). Part 3 Assessing needs Division 1 Preparing support plans 25 Assessment of participant's needs for treatment, care and support (1) For each participant in the scheme, the agency— (a) must assess the participant's treatment, care and support needs as a result of the participant's injury; and (b) may assess any other treatment, care or support needed by the participant, including treatment, care or support that is, or may be, provided or funded other than under the scheme. (2) In carrying out the assessment, the agency must, to the extent practicable, consult with the participant about the following matters— (a) the treatment, care and support the participant considers necessary and reasonable as a result of the participant's injury; (b) the participant's abilities and limitations; (c) the participant's individual goals. (3) The agency may also consult with any other person the agency considers appropriate. (4) The assessment must be carried out in the way, and at the intervals, prescribed by regulation. (5) However, subsection (4) does not prevent the agency from carrying out— (a) an extra assessment at any time the agency considers appropriate; or (b) an assessment of the treatment, care and support needed by a participant for a particular period only. 26 Making support plan (1) After carrying out the first assessment of a participant under section 25, the agency must make a plan (a support plan) that states— (a) the name of the participant; and (b) the outcomes of the assessment under section 25(1); and (c) the matters stated in section 25(2), if known by the agency; and (d) any treatment, care and support needs the agency considers are necessary and reasonable in the circumstances as a result of the participant's injury; and (e) any other treatment, care or support the agency considers should be funded, in whole or part, under the scheme, having regard to the following matters— (i) whether the treatment, care or support is needed by the participant as a result of the participant's injury or another personal injury resulting from the motor accident; (ii) whether it would be fair and reasonable in the circumstances to fund, in whole or part, the treatment, care or support; (iii) whether providing the treatment, care or support will, or is likely to, reduce the participant's treatment, care and support needs; (iv) whether funding all or part of the treatment, care or support is more practical or cost-effective than funding the participant's treatment, care and support needs, without compromising the level of treatment, care or support received by the participant under the scheme; (v) whether the treatment, care or support is excluded treatment, care and support; (vi) where the treatment, care or support is to be provided, including, for example, whether the treatment, care or support is to be provided outside Australia; and (f) any other matter prescribed by regulation. (2) After making the support plan, the agency must give the participant a copy of the plan. (3) A support plan made for a participant must be consistent with an existing decision on a service request relating to the participant. (4) However, subsection (3) applies only to the extent the support plan relates to the period covered by the existing decision. 27 Amending support plan (1) After carrying out a further assessment of a participant under section 25, the agency may amend the participant's support plan to reflect the outcomes of the assessment. Note— See also sections 31(5) and 51. (2) Without limiting subsection (1), the agency may amend the support plan to include— (a) any treatment, care and support needs the agency considers are necessary and reasonable in the circumstances as a result of the participant's injury; or (b) any other treatment, care or support the agency considers should be funded, in whole or part, under the scheme, having regard to the matters stated in section 26(1)(e). (3) An amendment to a participant's support plan must be consistent with an existing decision on a service request relating to the participant. (4) However, subsection (3) applies only to the extent the amendment relates to the period covered by the existing decision. Division 2 Service requests 28 Making service request (1) A person may, by notice (a service request), ask the agency to fund particular treatment, care or support (the requested service) to be provided to a participant in a particular period. (2) A service request may be made before or after a support plan is made for the participant. (3) If a service request is made by a person who is not the participant, the person making the request must give a copy of the request to the participant. 29 Information request (1) The agency may, by notice (an information request), ask any of the following persons for further information needed to decide a service request— (a) the person who made the request; (b) if the person who made the request is not the participant—the participant. (2) The information request must be made within 28 days after the service request is received. 30 Assessing service request In assessing a service request, the agency must consider the following matters— (a) whether or not the requested service relates to the participant's treatment, care and support needs as a result of the participant's injury; (b) if the requested service relates to the participant's treatment, care and support needs as a result of the participant's injury—whether or not the needs are necessary and reasonable in the circumstances; (c) if the requested service does not relate to the participant's treatment, care and support needs as a result of the participant's injury, or it relates to treatment, care and support needs that are not necessary and reasonable in the circumstances—whether or not the agency considers the requested service should be funded, in whole or part, under the scheme, having regard to the matters stated in section 26(1)(e). 31 Deciding service request (1) After assessing a service request, the agency must— (a) decide to— (i) approve the request with or without conditions; or (ii) refuse the request; and (b) give notice of the decision to— (i) the person who made the request; and (ii) if the person who made the request is not the participant—the participant. (2) A decision under subsection (1) must be made within the decision-making period. (3) If the agency decides to approve the request with conditions, or refuse the request, the notice given to the participant must be an information notice. (4) Subsections (5) and (6) apply if a support plan has been made for the participant. (5) If the agency decides to approve the request, with or without conditions, the agency must amend the support plan to reflect the approval. (6) If the agency decides to refuse the request, a copy of the information notice for the decision must be attached to the support plan. 32 Failure to decide service request (1) If the agency fails to decide a service request within the decision-making period, the failure is taken to be a decision by the agency to refuse the request. (2) If the request is taken to be refused under this section, the participant is entitled to be given an information notice by the agency for the decision. Part 4 Payments Division 1 Preliminary 33 About this part (1) This part sets out the 3 ways that payments may be made in relation to the treatment, care and support of participants in the scheme. Note— See also section 94. (2) Division 2 provides for payments to be made under funding agreements to cover particular treatment, care and support expenses incurred in particular periods. (3) Division 3 provides for payment requests to be made for treatment, care and support expenses as the expenses are incurred. (4) Division 4 provides for the agency to contribute towards an insurer's liability for treatment, care and support damages on a claim in particular circumstances. Division 2 Funding agreements 34 Funding agreement (1) The agency may enter into an agreement (a funding agreement) with a person that provides for the agency to pay to the person an amount to cover particular expenses to be incurred by the person, in a stated period, for the treatment, care or support of a participant. (2) However, a funding agreement may not be entered into in the circumstances, or for the treatment, care or support, prescribed by regulation. (3) A funding agreement must include the terms prescribed by regulation. Division 3 Payment requests 35 Request for payment (1) A person who incurs an expense for the treatment, care or support of a participant may, by notice (a payment request), ask the agency to pay all or part of the amount of the expense (the requested amount). (2) However, a payment request may not be made for the expense if— (a) the person has entered into a funding agreement with the agency for the treatment, care or support; and (b) the expense was incurred in the period covered by the funding agreement. (3) A payment request must be made within 6 months after the expense is incurred. (4) However, the agency may accept a later payment request if the agency considers it is fair and reasonable in the circumstances to accept the request. 36 Information request (1) The agency may, by notice (an information request), ask any of the following persons for information needed to decide a payment request— (a) the person who made the payment request; (b) if the person who made the payment request is not the participant—the participant. (2) The information request must— (a) be made within 28 days after the payment request is received; and (b) state that, if the requested information is not given to the agency by a stated day (the due day), the payment request will lapse. (3) The due day must be at least 10 days after the information request is given. (4) The payment request lapses if the requested information is not given to the agency— (a) by the due day; or (b) by a later day agreed between the agency and the person to whom the information request was given. (5) If the information request is made to a person, other than the person who made the payment request, the agency must give a copy of the information request to the person who made the payment request. 37 Deciding payment request (1) The agency must, within the decision-making period, decide to— (a) approve the payment request; or (b) refuse the payment request. (2) The agency must approve the payment request if— (a) the expense is incurred in the period the participant is a participant in the scheme; and (b) the treatment, care or support that the request relates to is an approved service for the participant. (3) To remove any doubt, it is declared that the agency may approve the payment request even though the treatment, care or support is not an approved service. (4) If the agency approves the payment request, the agency must pay the requested amount to the person who made the request within 28 days after making the decision. (5) However, the agency is not liable to pay a part of the requested amount that exceeds— (a) if the requested amount relates to treatment, care or support provided within Australia—an amount prescribed by regulation for the treatment, care or support; or (b) if the requested amount relates to treatment, care or support provided outside Australia—the average cost of providing the treatment, care or support in Queensland. (6) In this section— approved service does not include excluded treatment, care and support, unless— (a) if a support plan has been made for the participant—the excluded treatment, care and support is specifically stated in the support plan to be— (i) a treatment, care and support need that the agency considers is necessary and reasonable in the circumstances as a result of the participant's injury; or (ii) treatment, care or support the agency considers should be funded, in whole or part, under the scheme; or (b) if a support plan has not been made for the participant—the excluded treatment, care and support is specifically approved under a service request approval relating to the participant. 38 Notice of decision (1) If the payment request is refused, the agency must give notice of the decision to— (a) the person who made the payment request; and (b) if the person who made the payment request is not the participant—the participant. (2) The notice given to the participant must be an information notice. 39 Failure to decide payment request (1) If the agency fails to decide a payment request within the decision-making period, the failure is taken to be a decision by the agency to refuse the request. (2) If the request is taken to be refused under this section, the participant is entitled to be given an information notice by the agency for the decision. Division 4 Contribution by agency 40 Application of division This division applies in relation to a lifetime participant if a claim has been made against an insurer for the participant's injury. 41 Notice about right to treatment, care and support damages (1) The participant must give a notice to the agency and the insurer stating whether or not the participant wants to preserve any right the participant may have to be awarded treatment, care and support damages under a final judgment of a court or a binding settlement. (2) A notice given under subsection (1) stating that the participant wants to preserve any right the participant may have to be awarded treatment, care and support damages is a preservation notice. (3) The participant must give a notice under subsection (1)— (a) if the claim is made after the participant is accepted as a lifetime participant—within 14 days after the participant is given, or is entitled to be given, a notice under the Insurance Act, section 39(1) or (2); or (b) if the claim is made before the participant is accepted as a lifetime participant—within 14 days after the participant is given notice of the participant's acceptance into the scheme as a lifetime participant. (4) However, a notice may be given after the period stated in subsection (3), but before a final judgment is given, or a settlement is made, in relation to the claim, if— (a) the insurer and the agency agree to the notice being given; and (b) for a claim that is the subject of a proceeding before a court—the court orders that the notice may be given. (5) If the agency considers the participant is a person under a legal disability, the agency must apply to the court for an order sanctioning a notice given under subsection (1). (6) Subsections (7) and (8) apply if the court considers the participant is a person under a legal disability. (7) The court— (a) must decide whether or not to sanction the notice; and (b) may order that the participant, or a person acting for the participant, give a new notice under subsection (1); and (c) may make any other order the court considers appropriate. (8) If the participant is an adult, the court may exercise all the powers of QCAT under the Guardianship and Administration Act 2000, chapter 3. (9) If the court exercises a power mentioned in subsection (8), the Guardianship and Administration Act 2000, section 245(3) to (6) applies in relation to the exercise of the power as if the court were acting under section 245(2) of that Act. (10) This section is subject to section 43. (11) In this section— court means— (a) if a proceeding in relation to the claim has been brought in the District Court or the Supreme Court—the court hearing the proceeding; or (b) otherwise—the District Court or the Supreme Court. 42 Liability of agency to contribute towards damages (1) If the participant gives a preservation notice, the agency is liable to contribute towards the insurer's liability, if any, on the claim for treatment, care and support damages. Notes— 1 For the awarding of damages in relation to a participant's treatment, care and support needs, see the Civil Liability Act 2003, chapter 3, part 2A. 2 For the role of the agency in relation to a claim that the agency is liable to contribute towards, see the Insurance Act, part 4, division 8. (2) However, the agency stops being liable to contribute if— (a) a court decides, or the parties to the claim agree by way of settlement, that— (i) the participant is guilty of contributory negligence in relation to the claim; and (ii) the damages that the participant would otherwise be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by 50% or more; or (b) a court decides, under section 41(7), not to sanction the preservation notice; or (c) a court makes an order, under section 43, preventing the participant from being awarded treatment, care and support damages; or (d) for a participant other than a participant whose preservation notice has been sanctioned by a court—the participant, by notice to the agency and the insurer, withdraws the preservation notice. (3) In this section— party, to the claim, includes the agency. 43 Application to court for order (1) The agency may apply to the court for an order preventing the participant from being awarded treatment, care and support damages under a final judgment of a court or a binding settlement. (2) An application under subsection (1) may be made whether or not the participant has given a notice under section 41(1). (3) The participant is the respondent to the application. (4) In deciding whether to make the order, the court— (a) must consider the participant's ability to manage an award of treatment, care and support damages in a way that will not compromise the participant's— (i) prospects of improvement or rehabilitation; or (ii) future health and wellbeing; and (b) must consider whether the participant is a person under a legal disability; and (c) may consider any other matter the court considers relevant. (5) If the court makes the order— (a) the participant may not give a preservation notice; and (b) any preservation notice given by the participant is taken not to have been given. (6) If the participant is an adult, the court may exercise all the powers of QCAT under the Guardianship and Administration Act 2000, chapter 3. (7) If the court exercises a power mentioned in subsection (6), the Guardianship and Administration Act 2000, section 245(3) to (6) applies in relation to the exercise of the power as if the court were acting under section 245(2) of that Act. (8) In this section— court means— (a) if a proceeding in relation to the claim has been brought in the District Court or the Supreme Court—the court hearing the proceeding; or (b) otherwise—the District Court or the Supreme Court. 44 Acceptance of treatment, care and support damages (1) This section applies if— (a) the participant is awarded treatment, care and support damages under a final judgment of a court or a binding settlement; and (b) the agency is liable, under section 42, to contribute towards the insurer's liability on the claim for treatment, care and support damages. (2) The participant must, within the acceptance period, give notice to the agency and the insurer stating whether or not the participant accepts the awarded treatment, care and support damages. (3) If the participant states in the notice given under subsection (2) that the participant accepts the awarded treatment, care and support damages— (a) the agency must pay to the participant the amount of the awarded treatment, care and support damages, less any amount that relates to the period of the participant's participation in the scheme; and (b) the participant stops being a participant in the scheme when the participant receives the payment under paragraph (a); and (c) despite the final judgment of the court or the terms of the binding settlement— (i) the insurer is not liable to pay to the participant the amount of the awarded treatment, care and support damages; and (ii) the agency is not liable to pay to the participant any amount of the awarded treatment, care and support damages that relates to the period of the participant's participation in the scheme. (4) Subsection (5) applies if the participant gives a notice under subsection (2) stating that the participant does not accept the awarded treatment, care and support damages. (5) Despite the final judgment of the court or the terms of the binding settlement, neither the agency nor the insurer is liable to pay the amount of the awarded treatment, care and support damages. (6) For this section, a payment of an amount of damages is taken to have been paid to, or received by, the participant if the payment is paid to, or received by, a person who may lawfully receive the payment for the participant. (7) This section applies despite the Civil Proceedings Act 2011, part 13. (8) In this section— acceptance period means— (a) if the binding settlement or final judgment under which the treatment, care and support damages are awarded must, under another Act, be sanctioned by a court or the public trustee—the period of 14 days after the sanction is given; or (b) if the treatment, care and support damages are awarded under a binding settlement and paragraph (a) does not apply—the period of 14 days after the settlement is made; or (c) if the treatment, care and support damages are awarded under a final judgment of a court and paragraph (a) does not apply—the period of 14 days after the period for lodging an appeal against the judgment ends. Part 5 Reviewing participation 45 Reviewing participation of interim participant (1) The agency may review the participation of an interim participant at any time during the participation period. (2) At least 1 review must be carried out before the end of the participation period. (3) The agency must give the interim participant notice of the review at least 28 days before carrying out the review. (4) In carrying out the review, the agency may ask the participant to give the agency information needed to make a decision under section 46. 46 Decision about review (1) After carrying out a review, the agency must make a decision about— (a) whether or not the participant is still eligible to participate in the scheme; and (b) if the agency decides that the participant is still eligible to participate in the scheme—whether or not the agency is satisfied that the participant's injury is likely to continue to meet the eligibility criteria for the injury after the participation period ends. (2) A decision under subsection (1) must be made before the end of the participation period. (3) Subsection (4) applies if the agency decides that— (a) the participant is still eligible to participate in the scheme; and (b) the agency is satisfied that the participant's injury is likely to continue to meet the eligibility criteria after the participation period ends. (4) The agency must accept the person as a participant in relation to the injury for the rest of the person's life. (5) If subsection (4) does not apply, the participant stops being a participant— (a) at the end of the participation period; or (b) if the agency decides the participant is no longer eligible to participate in the scheme—on an earlier day stated in the notice given to the participant under section 47. 47 Notice of review decision (1) Within 14 days after making a decision under section 46, the agency must give notice of the decision to— (a) the participant; and (b) if a claim has been made against an insurer for the participant's injury and the claim has not been finalised—the insurer. (2) If the agency makes either of the following decisions, the notice must be an information notice— (a) a decision that the participant is no longer eligible to participate in the scheme; (b) a decision that the agency is not satisfied that the participant's injury is likely to continue to meet the eligibility criteria for the injury after the participation period ends. 48 Failure to make review decision (1) If the agency does not make a decision under section 47 about a review before the end of the participation period— (a) the agency is taken to have decided that the participant is no longer eligible to participate in the scheme; and (b) the participant stops being a participant in the scheme at the end of the participation period. (2) If the agency is taken, under this section, to have decided that the participant is no longer eligible to participate in the scheme, the following persons are entitled to be given an information notice by the agency for the decision— (a) the participant; (b) if a claim has been made against an insurer for the participant's injury and the claim has not been finalised—the insurer. Part 6 Participants absent from Australia 49 Application of part This part applies to a participant in the scheme if— (a) the participant leaves Australia; and (b) while the participant is absent from Australia, expenses are, or are likely to be, incurred by or for the participant for the participant's treatment, care or support; and (c) the agency did not, in deciding the approved services for the participant, consider the need for treatment, care and support to be provided outside Australia as a result of the participant's absence. 50 Participant must notify agency of absence (1) At least 1 month before leaving Australia, the participant must give notice of the absence to the agency, unless the participant has a reasonable excuse. Maximum penalty—10 penalty units. (2) The notice must state— (a) the day the participant intends to leave Australia; and (b) if the participant intends to return to Australia—the day the participant intends to return; and (c) the participant's address while outside Australia; and (d) any treatment, care and support to be provided outside Australia that the participant wants the agency to fund. (3) However, this section does not apply if, before the participant leaves Australia, a service request is made, or a funding agreement is entered into, for the treatment, care and support to be provided to the participant outside Australia. 51 Reviewing support plan or service request approval (1) This section applies if— (a) a support plan has been made for the participant; or (b) a support plan has not been made for the participant, but a service request approval relating to the participant has been given. (2) To the extent the support plan or service request approval relates to the period the participant is, or intends to be, absent from Australia, the agency may— (a) review the plan or approval; and (b) make any amendments to the plan or approval the agency considers appropriate. (3) Without limiting subsection (2), the agency may amend the approved services for the participant by— (a) removing or rescheduling any treatment, care or support that is to be provided in Australia while the person is absent from Australia; or (b) including any treatment, care or support that is to be provided outside Australia while the person is absent from Australia, if the agency considers the treatment, care or support should be funded, in whole or part, under the scheme, having regard to the following matters— (i) the length of the absence; (ii) whether the treatment, care or support is to be, or could be, provided or funded in another way during the absence; (iii) whether the treatment, care or support is excluded treatment, care and support; (iv) any other matter the agency considers relevant. (4) However, the agency may amend the approved services to include treatment, care or support that is to be provided outside Australia only if a service request has not been made for the treatment, care or support. (5) If the agency decides to amend the support plan or the service request approval, the agency must, within 14 days of making the decision, give the participant— (a) a copy of the amended plan or approval; and (b) if the decision is to amend approved services—an information notice for the decision. (6) To remove any doubt, it is declared that the agency is not required to carry out an assessment under section 25 before amending a support plan under this section. 52 Suspending participation (1) The agency may suspend the participant's participation in the scheme if— (a) the agency is satisfied the participant has left Australia for more than 3 consecutive months; and (b) either of the following applies— (i) a claim has not been made against an insurer for the participant's injury; (ii) a claim has been made against an insurer for the participant's injury, but the insurer has denied liability on the claim or has been held by a court not to be liable for the participant's injury. (2) Also, the agency may suspend the participant's participation in the scheme if the agency considers that the participant's absence from Australia will, or is likely to, adversely affect— (a) the participant's condition as a result of the participant's injury; or (b) the participant's prospects of improvement or rehabilitation. (3) The participant's participation in the scheme may be suspended for all or part of the period the participant is absent from Australia. (4) If the agency decides to suspend the participant's participation, the agency must give the participant an information notice for the decision. (5) The information notice— (a) must state the period of the suspension; and (b) may state that the period of suspension starts on the day the person left Australia, even if the information notice is given after that day. (6) For part 4, division 3, the participant is taken not to be a participant in the scheme for the period of the suspension. (7) This section applies subject to section 14(6). Part 7 Miscellaneous 53 Requirement to notify of claim (1) This section applies if— (a) a person makes an application in relation to a serious personal injury and, before the application is decided, a claim is made for the injury; or (b) a person makes a claim for a participant's injury after the participant is accepted into the scheme. (2) Within 14 days of making the claim, the person must give the agency notice stating— (a) that the person has made the claim; and (b) the day the claim was made; and (c) the insurer against whom the claim has been made. Maximum penalty—10 penalty units. 54 Electronic applications (1) Without limiting the Electronic Transactions (Queensland) Act 2001, a person is taken to have complied with the requirements for making an application stated in section 19(1)(a) and (b) if the person— (a) gives the information required on the approved form by a method acceptable to the agency; and (b) gives the agency any information that must, under section 19(1)(b), be included in or accompany the application within the reasonable period decided by the agency. (2) If the person's signature is required on the approved form, the requirement is met if— (a) a method is used to identify the person and to indicate the person's approval of the information given under subsection (1); and (b) having regard to all the relevant circumstances when the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; and (c) the agency consents to the requirement being met by using the method mentioned in paragraph (a). Chapter 3 National Injury Insurance Agency, Queensland Part 1 Establishment, functions and powers Division 1 Establishment of agency 55 Establishment (1) The National Injury Insurance Agency, Queensland is established. (2) The agency is governed by the chief executive officer. 56 Legal status The agency— (a) is a body corporate; and (b) has perpetual succession; and (c) may sue and be sued in its corporate name. 57 Relationship with State (1) The agency represents the State. (2) Without limiting subsection (1), the agency has the status, privileges and immunities of the State. Division 2 Functions and powers 58 Functions (1) The main functions of the agency are to— (a) administer the scheme; and (b) provide information to the community about the scheme; and (c) monitor and review the operation of the scheme, including the treatment, care and support received by participants under the scheme; and (d) conduct research and collect statistics about the scheme; and (e) give advice and information to the Treasurer and the commission about the administration, efficiency and effectiveness of the scheme; and (f) provide support and funding for programs, research and education relevant to the treatment, care and support of participants in the scheme; and (g) manage the fund; and (h) set investment objectives for the fund or part of the fund and establish investment strategies and policies to achieve the objectives; and (i) keep a register of providers of services under the scheme. (2) The agency's functions also include any other function given to it under this Act or another Act. (3) The agency may appoint an entity to perform, or advise the agency about performing, the function under subsection (1)(h). (4) An entity appointed under subsection (3) must be— (a) an entity nominated by the Treasurer; or (b) if the Treasurer has not nominated an entity—the advisory board known as the State Investment Advisory Board established under the Queensland Treasury Corporation Act 1988, section 10. 59 General principles for performing functions (1) In performing its functions under this Act, the agency must have regard to the following principles— (a) participants in the scheme should be assisted to set and achieve individual goals; (b) participants should be supported to maximise independence, participation in the community and employment; (c) participants should be encouraged, and given the opportunity, to take part in decision-making and exercise choice and control; (d) the dignity and rights of participants is to be respected; (e) identifying effective treatment, care and support for a participant requires collaboration and open communication between the participant, the agency, the participant's family and caregivers, and service providers; (f) the level of treatment, care and support received by participants under the scheme is to— (i) be evidence-based; and (ii) reflect community expectations; and (iii) provide value for money; (g) as far as possible, the scheme is to be managed in a way that ensures its operation is financially sustainable. (2) Subsection (1) does not limit the matters the agency may have regard to in performing its functions. 60 Agency may agree to perform functions of support entity (1) The agency may enter into an agreement with a support entity that provides for the agency to perform a function of the entity under a care and support scheme law. (2) The agreement may deal with any matter necessary or convenient to help the agency perform the function of the support entity, including, for example— (a) how the performance of the function is to be funded; and (b) arrangements for sharing information that is relevant to the performance of the function. (3) If an agreement is entered into with a support entity, the agency may, subject to the agreement, perform the function of the entity stated in the agreement. (4) In this section— care and support scheme law means an Act, or a law of the Commonwealth or another State, that provides for— (a) a scheme that is substantially the same as, or similar to, the scheme; or (b) a scheme for the payment of compensation, or providing other care and support, to persons who have suffered injury, whether or not the injury was caused by an incident involving a prescribed vehicle. support entity means an entity that has functions under a care and support scheme law, including functions under a contract of insurance required, or provided for, by a care and support scheme law. 61 Powers (1) The agency has all the powers of an individual and may, for example— (a) enter into contracts; and (b) acquire, hold, deal with and dispose of property; and (c) employ staff; and (d) appoint agents and attorneys; and (e) engage consultants; and (f) do anything else necessary or convenient to be done in the performance of its functions. (2) The agency also has the powers given to it under this Act or another Act. 62 Performing functions and exercising powers outside Queensland The agency may perform its functions, or exercise its powers, inside or outside Queensland, including outside Australia. Division 3 Administration 63 Staff of agency (1) The agency may employ staff it considers appropriate to perform its functions. (2) Staff are employed under this Act and not the Public Sector Act 2022. 64 Delegation The agency may delegate the agency's functions or powers under this Act to an appropriately qualified person who is— (a) the chief executive officer; or (b) an employee of the agency; or (c) a person who performs work for the agency under a contractual or other arrangement; or (d) an employee of an entity that performs work for the agency under a contractual or other arrangement. 65 Advisory committees (1) The agency may establish 1 or more advisory committees to advise the agency on the performance of the agency's functions under this Act. (2) The matters an advisory committee may advise on are to be decided by the agency, with the approval of the Minister. (3) An advisory committee consists of the persons appointed by the Minister on the agency's recommendation. (4) The members of an advisory committee hold office on the terms decided by the Minister. Part 2 [Repealed] Division 1 [Repealed] 66 [Repealed] 67 [Repealed] 68 [Repealed] 69 [Repealed] 70 [Repealed] 71 [Repealed] 72 [Repealed] 73 [Repealed] Division 2 [Repealed] 74 [Repealed] 75 [Repealed] 76 [Repealed] 77 [Repealed] 78 [Repealed] 79 [Repealed] Division 3 [Repealed] 80 [Repealed] Part 3 Chief executive officer 81 Appointment (1) The agency must have a chief executive officer. (2) The chief executive officer is appointed by the Governor in Council. (3) The chief executive officer is appointed under this Act and not the Public Sector Act 2022. (4) The Governor in Council may appoint a person who is a public service off