WORKCOVER QUEENSLAND AMENDMENT BILL 2002

Transcription

1 1 WORKCOVER QUEENSLAND AMENDMENT BILL 2002 EXPLANATORY NOTES GENERAL OUTLINE Objectives of the legislation To provide for miscellaneous amendments to the WorkCover Queensland Act Reason for the Bill The Bill will amend the WorkCover Queensland Act 1996 to provide for: A Court to make a consent order for the structured settlement of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means; Changes to succession rules so as to provide a premium incentive to employers with good occupational health and safety records; Cross border workers compensation arrangements with New South Wales and Victoria; and A declaration to ensure certainty in common law damages claims. Achieving the objectives Structured Settlements Structured settlements are a way of paying compensation for personal injury whereby all or part of the compensation is paid in the form of periodic payments and these periodic payments are funded by the purchase of an annuity. They are a form of settlement agreement that is structured so that the periodic payments match as closely as possible the financial needs of the injured person as they are expected to change over their lifetime.

2 2 The Personal Injuries Proceedings Act 2002 introduced voluntary structured settlements into all other personal injury claims other than workers compensation. This was part of Government s commitment to facilitate the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. The Premier s consultative group on Public Liability Insurance agreed to delay the introduction of voluntary structured settlements into damages awards for WorkCover damages claims. This agreement was reached in order to allow WorkCover and stakeholders further time to consider the implications of encouraging structured settlements to workers compensation damages claims. The Commonwealth Government announced in 2001 changes to taxation legislation to encourage the use of structured settlements. This change involved making annuities purchased by a claimant or their insurer for an accident tax-free (both on the return of capital and the investment income). The Commonwealth taxation changes exclude workers compensation awards. As such, there will be no tax exemption for structured settlements in workers compensation claims. Stakeholder support for the necessary amendments comes from a desire to show Queensland s support for the use of structured settlements, and that through the State Government pressure be brought to bear so as to amend Commonwealth taxation legislation. Succession Rules Succession rules were introduced into Queensland s workers compensation legislation in order to retain claims history following the transfer of a business. In some cases, the purchaser of a business who has had no previous connection with that business is effectively being penalised because the WorkCover Queensland Act 1996 applies what might be a poor claims history of the purchased business to the new owner. The WorkCover Board considered this matter and its recommended solution has been proposed to all major stakeholders, who have expressed their unanimous support. Consistent with the Board s resolution, the Bill will assist WorkCover to apply succession rules as follows: Where a person acquires a business with which they have had no previous connection, premiums will be determined by the application of the industry rate for the first 18 months of operation (following acquisition) and thereafter, the premium

3 3 will be calculated by the standard Experience Based Rating formula. This is the same calculation as currently used for a new business; or If an existing business is acquired or dissolved and then recommenced by a person or persons associated with that business, the new owner(s) will have their premium determined for the first 18 months by reference to the previous rate associated with that business, and thereafter, by application of the Experience Based Rating system, commencing with the experience of the first 18 months of the operation of the new business. Cross Border Workers Compensation Arrangements Officers from relevant agencies and Departments in Queensland, New South Wales and Victoria have sought a solution to the impasse that has slowed implementation of a consistent State and Territory cross border arrangement that reflects the flexibility of Queensland s workers compensation scheme. Negotiations with New South Wales and Victoria have resolved that legislative change be made to their respective workers compensation schemes. The agreement reached by Queensland, Victoria and New South Wales was noted at the Workplace Relations Ministers Council on 24 May The agreement has the full and unqualified support of all stakeholders. The agreement between Queensland, New South Wales and Victoria is based upon certain general principles, which seek as their objective: To eliminate the need for employers to obtain workers compensation coverage for a worker or deemed worker in more than one jurisdiction and enable employers to readily determine the state in which to obtain that insurance; To ensure that workers and deemed workers temporarily working in another jurisdiction only have access to the workers compensation entitlements available in their home jurisdiction (including arrangements applying in relation to common law); To provide certainty for workers about their workers compensation entitlements; To eliminate forum shopping; and

4 4 To ensure that each worker is connected to one jurisdiction or another. These principles are to be achieved by ensuring that: (a) (b) A worker is only entitled to the benefits applying in the jurisdiction determined under the applicable/relevant State statutory scheme (the home jurisdiction). This includes any benefits available under common law. At any point in time therefore, a worker will be linked to a single State/Territory only and an injury occurring in a State will not necessarily be covered by the workers compensation scheme of that State. A worker s employment would be connected with: I. the State in which the worker usually works in their employment; II. III. if no State or no one State is identified by paragraph (i), the State in which the worker is usually based for the purposes of that employment; or if no State or no one State is identified by paragraphs (i) or (ii), the State in which the employer has its principal place of business. If no State is identified by these tests, a worker s employment is then connected with a State if the worker is in that State when their injury occurred and the worker is not entitled to compensation for the same matter under the laws of a place outside Australia. (c) (d) (e) (f) It is not intended that there be any fallback to any other jurisdiction (except in the circumstances outlined in (h) below). Individual jurisdictions could determine the extent to which employment overseas would be covered by their legislation. The determination of the home jurisdiction will not be affected by the worker undertaking a temporary period of work for the same employer for a period up to and including six months in another State/Territory. The benefits of the home jurisdiction will apply to a worker temporarily working in another State or Territory for the period of work up to and including six months.

5 5 (g) (h) (i) When six months has expired, the intention of the employer and the worker as to the temporary nature of the work in the other jurisdiction must be reviewed. As far as possible, workers on ships would be treated the same as other workers. Some modifications may be required to address specific requirements for such workers. For example, some seafarers may come within the first connection test if they usually work within one State/Territory. If it is necessary to move to the second test, ie where they are based, and they are based on a ship, the ship would be linked to one State/Territory. All States/ Territories would have the same definitions of ship and home State of a ship as in the amendments developed for the Western Australian workers compensation legislation. Consistency between this provision and the tests for State of connection is to be ensured. In relation to common law access: i. A claim in tort in respect of a work related personal injury suffered by a worker is to be determined in accordance with the substantive law of the State with which the worker s employment is connected (as determined by the tests in (b) above) at the time of the injury; ii. The relevant rules would apply to actions taken against an employer or a person for whom the employer may be vicariously liable; iii. Courts would apply the substantive law of the home jurisdiction; and iv. Substantive law would be defined and would include any procedural provisions applying under the workers compensation legislation and any other relevant legislation of the home jurisdiction.

6 6 Certainty in damages claims The Bill confirms the decision of the Queensland Court of Appeal in Tanks v WorkCover Queensland [2001] QCA 103 by declaring that nothing in the WorkCover Queensland Act 1996 affects or has ever affected the commencement of the limitation period provided by s11 of the Limitation of Actions Act Alternatives to the Bill A number of options for each proposed change were prepared for consultation with stakeholders. The recommendations made by this Submission reflect those options given the greatest support by all stakeholders. Administrative costs and savings to Government As the Bill will: considerably ease the administrative and premium burden on employers with good occupational health and safety records; ease the administrative burden and premium burden on those employers employing Queenslanders who regularly work interstate; and assist the Government s commitment to contain insurance costs; the Bill is considered to be of benefit to the continued and future employment growth of Queensland. The introduction of structured settlements to personal injury claims is part of Government s commitment to facilitate the ongoing affordability of insurance through appropriate and sustainable damages awards for personal injury. As structured settlements are not considered to increase common law damages awards, no adverse financial impact on the scheme is expected from the amendments proposed by the Bill. WorkCover Queensland has confirmed that the other amendments made by this Bill, can be passed as proposed and not adversely affect the scheme. Consistency with fundamental legislative principles The Bill will greatly simplify the legislative burden by easing administrative arrangements in the payment of premium for employers, and

7 7 providing certainty in cross border arrangements and common law actions for damages. The Bill confirms the decision of the Queensland Court of Appeal in Tanks by declaring that nothing in the WorkCover Queensland Act 1996 affects or has ever affected the commencement of the limitation period provided by s11 of the Limitation of Actions Act Advice from the Solicitor General is that there is a need for a clear indication in legislation that the limitation period of three years applicable to causes of action for damages for injury or death, which arises independently from the WorkCover Queensland Act 1996, applies irrespective of the issue of a notice or certificate. Because the problem arises from the terms of the Act, it follows that the only solution involves an amendment to the WorkCover Queensland Act 1996, and to address the problem of claims already in the system that amendment must be explicitly retrospective. Unless the amendment is explicitly retrospective the Courts can be expected to construe it as operating only in relation to injuries which post date the change in the law. The declaration is provided to cause certainty in the interpretation of workers compensation damages claims, and does not operate to deny an individual s entitlement. Consultation The following stakeholders have been consulted: Unions The Queensland Council of Unions and the Australian Workers Union (Queensland). Employer groups The Housing Industry Association, Queensland Master Builders Association, the Queensland Workers Compensation Self-Insurers Association, Agforce, Commerce Queensland, Group Training Australia, the Australian Industry Group, and the National Meat Association.

8 8 Lawyers The Queensland Law Society and the Australian Plaintiff Lawyers Association. Government departments & agencies Department of Premier and Cabinet, Treasury Department, Motor Accident Insurance Commission, Department of Justice and Attorney General, Queensland Public Liability Taskforce and the Solicitor- General. Insurers The Insurance Council of Australia, WorkCover Queensland, WorkCover New South Wales, and the Victorian WorkCover Authority. NOTES ON CLAUSES Short title Clause 1 provides the short title of the Bill. Commencement Clause 2 provides that sections 4 and 5, 7 to 11 and 14 to 17, implementing cross border arrangements agreed between Queensland, New South Wales and Victoria, will commence on 1 July The remaining provisions commence on assent. Act amended Clause 3 provides that the Bill amends the WorkCover Queensland Act Amendment of s 52 (Employer s obligation to insure) Clause 4 repeals section 52(6) of the WorkCover Queensland Act Section 52 of the WorkCover Queensland Act 1996 provides that every employer must for each worker employed by the employer insure and

9 9 remain insured against injury sustained by the worker for compensation and damages. Section 52(6) provides that an employer is not required to insure against legal liability for injury sustained by a seafarer employed by the employer, unless the seafarer is employed on a Queensland ship. The general principles agreed to by Queensland, New South Wales and Victoria for cross border workers compensation arrangements provide (see clause (h) of the Principles Agreement) that as far as possible, workers on ships would be treated in the same way as other workers. That is that the State of Connection test provided at Clause 8 of this Bill would apply equally to workers on ships. To assist this process the Principles Agreement sought that all States would have the same definitions of ship. Through the use of such common definitions consistency was sought for the State of Connection test for workers on ships. To meet this agreed position Queensland is repealing the definitions of seafarer and Queensland Ship (see Clause 17 of the Bill). Therefore the current reference made in section 52(6) of the WorkCover Queensland Act 1996 to a seafarer and Queensland Ship is now obsolete. Clause 5 of the Bill takes up the intention of section 52(6) of the WorkCover Queensland Act That is, the Bill supports the State of Connection test for workers, including workers on ships, by introducing a defence for employers against an alleged contravention of the general obligation to insure provided at sections 54 and 55 of the WorkCover Queensland Act Amendment of s 55 (Offence of contravening general obligations to insure) Clause 5 amends section 55 of the WorkCover Queensland Act Section 55 provides that an employer must not contravene their obligation to insure, as provided under section 52 of the WorkCover Queensland Act The Bill amends section 55 of the WorkCover Queensland Act 1996 to provide that for an employer it is a defence to prove that at the time of the alleged offence - The employer believed, on reasonable grounds, that they could not be liable under the WorkCover Queensland Act 1996 in

10 10 relation to the worker because under Clause 8 of this Bill the worker s employment was not connected with this State; and The employer had workers compensation cover in relation to the worker s employment under the law of the State with which the employer believed, on reasonable grounds, the worker s employment was connected under Clause 8 of this Bill. This amendment is intended to assist employers to meet their obligation to insure in this State or another State. The Bill also clarifies the term workers compensation cover, defining it as meaning insurance or registration required under the law of a State in relation to liability for statutory workers compensation under that law. Amendment of s59 (Setting premium on change of ownership of business) Clause 6 amends section 59 of the WorkCover Queensland Act Section 59 provides how it is that WorkCover must set the premium of a business on the change of ownership of that business. Section 59 currently does not capture employers who are determined to avoid previous claims history, and does not recognise employers with good work practices who purchase a business with a poor claims history. Succession rules were introduced through section 59 in order to retain claims history following the transfer of a business. A person or persons associated with a business having a poor claims history can still avoid the consequential premiums by either: Dissolving the existing business and restarting a new business with the same employees, and in the same industry as that previously conducted; or Acquiring the existing business from owners with which they were associated, and then relocating that business so as to bring them within the exception contained in section 59(3). Equally, where there is a genuine transfer of a business the new owners may have substantially better injury prevention methods but will suffer the penalty of the previous owners poor history. Amendments brought by this Bill are intended to assist WorkCover to apply future succession rules, so that generally:

11 11 Where a person acquires a business with which they have had no previous connection, premiums will be determined by the application of the industry rate for the first 18 months of operation (following acquisition) and thereafter, the premium will be calculated by the standard Experience Based Rating formula. This is the same calculation as currently used for a new business; or If an existing business is acquired or dissolved and then recommenced by a person or persons associated with that business, the new owner(s) will have their premium determined for the first 18 months by reference to the previous rate associated with that business, and thereafter, by application of the Experience Based Rating system, commencing with the experience of the first 18 months of the operation of the new business. Replacement of ch 3, pt 2, div 2 hdg Clause 7 replaces the heading for ch 3, pt 2, div 2 of the WorkCover Queensland Act 1996, Entitlement in relation to place where injury is sustained and provides for a new heading Entitlement according to jurisdiction. This new heading better reflects the intention of the Division in providing for a State of Connection test for cross border workers compensation arrangements. Replacement of s139 (entitlement depends on where injury is sustained) Clause 8 replaces section 139 of the WorkCover Queensland Act Section 139 currently confers an entitlement to compensation for an injury sustained by a worker only if, when the injury happened: The worker is in Queensland; or the worker is outside Queensland and the worker s principal place of employment is in Queensland. As a result of current workers compensation arrangements across Australian jurisdictions, employers often find themselves in the position of being required to obtain workers compensation coverage for a worker in more than one State.

12 12 In addition to the financial and administrative burden being placed on businesses as a result of such a requirement, the current situation can also be a source of confusion for employers and workers alike. Workers in particular are often unsure of their entitlements when working interstate, and in the event of an injury occurring, are unsure of where to lodge a claim for compensation. An agreement has been reached to have complementary interstate worker provisions introduced in Queensland, New South Wales and Victoria. This Principles Agreement seeks to: Eliminate the need for employers to obtain workers compensation coverage for a worker or deemed worker in more than one jurisdiction and enable employers to readily determine the State in which to obtain that insurance; Ensure that workers and deemed workers temporarily working in another jurisdiction only have access to the workers compensation entitlements available in their home jurisdiction (including whatever arrangements apply in relation to common law); Provide certainty for workers about their workers compensation entitlements; Eliminate forum shopping; and Ensure that each worker is connected to one jurisdiction or another. These principles are to be achieved by ensuring that: (a) (b) A worker is only entitled to the benefits applying in the jurisdiction determined under the applicable/relevant State statutory scheme (the home jurisdiction). This includes any benefits available under common law. At any point in time therefore, a worker will be linked to a single State/Territory only, and an injury occurring in a State will not necessarily be covered by the workers compensation scheme of that State. A workers employment would be connected with: i. the State in which the worker usually works in their employment;

13 13 ii. if no State or no one State is identified by paragraph (i), the State in which the worker is usually based for the purposes of that employment; or iii. if no State or no one State is identified by paragraphs (i) or (ii), the State in which the employer has its principal place of business. If no State is identified by these tests, a worker s employment is then connected with a State if the worker is in that State when their injury occurred and the worker is not entitled to compensation for the same matter under the laws of a place outside Australia. (c) It is not intended that there be any fallback to any other jurisdiction (except in the circumstances outlined in (h) below). (d) Individual jurisdictions could determine the extent to which employment overseas would be covered by their legislation. (e) The determination of the home jurisdiction will not be affected by the worker undertaking a temporary period of work for the same employer for a period up to and including six months in another State/Territory. (f) The benefits of the home jurisdiction will apply to a worker temporarily working in another State or Territory for the period of work up to and including six months. (g) When six months has expired, the intention of the employer and the worker as to the temporary nature of the work in the other jurisdiction must be reviewed. (h) As far as possible, workers on ships would be treated the same as other workers. Some modifications may be required to address specific requirements for such workers. For example, some seafarers may come within the first connection test if they usually work within one State/Territory. If it is necessary to move to the second test, ie where they are based, and they are based on a ship, the ship would be linked to one State/Territory. All States/ Territories would have the same definitions of ship and home State of a ship as in the amendments developed for the Western Australian workers compensation legislation. Consistency between this provision and the tests for State of connection is to be ensured. i) In relation to common law access:

14 14 i. A claim in tort in respect of a work related personal injury suffered by a worker is to be determined in accordance with the substantive law of the State with which the worker s employment is connected (as determined by the tests in (b) above) at the time of the injury; ii. The relevant rules would apply to actions taken against an employer or a person for whom the employer may be vicariously liable; iii. Courts would apply the substantive law of the home jurisdiction; and iv. Substantive law would be defined and would include any procedural provisions applying under the workers compensation legislation and any other relevant legislation of the home jurisdiction. In order to satisfy the terms of this Principles Agreement, the Bill replaces section 139 of the WorkCover Queensland Act 1996 to provide for new arrangements applicable to interstate arrangements. Overseas arrangements are to be provided for separately (see Clause 10 of the Bill). Under new interstate arrangements, to be effective from 1 July 2003, employment must be connected with Queensland for compensation to be payable under the WorkCover Queensland Act The fact that a worker is outside of Queensland when the injury occurs will not prevent compensation being payable under the WorkCover Queensland Act The Bill incorporates tests consistent with the Principles Agreement for determining the State in which a worker s employment is connected. Under the new arrangements, a worker s employment will be connected with: (i) The State in which the worker usually works in that employment; or (ii) If no State or no one State is identified by paragraph (i), the State in which the worker is usually based for the purposes of that employment; or (iii) If no State or no one State is identified by paragraph (i) or (ii), the State in which the employer has its principal place of business.

15 15 If no State is identified by these tests, a worker s employment is connected with a State if the worker is in that State when their injury occurred and the worker is not entitled to compensation for the same matter under the laws of a place outside Australia. Workers on ships (previously referred to as seafarers ) will be treated in the same way as other workers. However, compensation under the WorkCover Queensland Act 1996 will not apply in relation to employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker s employment. This provision is equivalent to section 147(2) of the WorkCover Queensland Act 1996, which is to be repealed by Clause 11 of this Bill. In applying the above tests to a worker on a ship, if no State, or no one State is identified, a worker s employment is, while on a ship, connected with the State in which the ship is registered or, where the ship is registered in multiple States, the State in which the ship was most recently registered. The Bill also provides that where a designated court of another State makes a determination of the State with which the worker s employment is connected for the purposes of a corresponding law, this determination is to be recognised as the State with which the worker s employment is connected. The Bill provides a definition of the terms corresponding law and designated court. Insertion of new ch 3, pt 2, div 2A hdg Clause 9 provides for the inclusion of a new heading before section 140 of the WorkCover Queensland Act The new heading is titled Overseas arrangements. Amendment of s140 (interstate and overseas arrangements) Clause 10 replaces the heading for section 140 to reflect that this section now only deals with overseas arrangements. The Bill removes references to State or in section 140 of the WorkCover Queensland Act 1996 now that interstate arrangements are provided for by Clause 8. The Bill intends that section 140 of the WorkCover Queensland Act 1996, other than references to interstate matters be retained. The retention

16 16 of Queensland s overseas arrangements is consistent with the Principles Agreement reached with New South Wales and Victoria. Clause (d) of the Principles Agreement provides that individual jurisdictions could determine the extent to which employment overseas would be covered by their State workers compensation legislation. Replacement of ch 3, pt 3, div 1 Clause 11 replaces ch 3, pt 3, div 1 of the WorkCover Queensland Act Chapter 3, pt 3, div 1 currently provides for the compensation entitlements of seafarers. The Bill replaces the div 1 heading seafarers with workers on ships. The Bill also repeals the definition of seafarer provided for by section 146 of the WorkCover Queensland Act The definition of seafarer is replaced by the definition workers on ships. This change in definition is consistent with the Principles Agreement reached by Queensland, New South Wales and Victoria. Clause (h) of the Principles Agreement provides that, as far as possible, workers on ships would be treated the same as other workers. Some modifications may be required to address specific requirements for such workers. For example, some seafarers may come within the first connection test if they usually work within one State. If it is necessary to move to the second test, ie, where they are based, and they are based on a ship, the ship would be linked to one State. All States are to have the same definitions of ship. The Bill therefore removes the entitlement provisions of seafarers under sections 145, 146 and 147 of the WorkCover Queensland Act The Bill intends that workers on ships will be treated in the same way as other workers (see clause 8). The Bill retains section 148 of the WorkCover Queensland Act 1996, other than amendments to reflect the repeal of the definition of seafarer. Insertion of new s252a (Period of limitation under Limitation of Actions Act 1974 never affected) Clause 12 inserts a new section 252 into the WorkCover Queensland Act 1996.

17 17 The Bill confirms the decision of the Queensland Court of Appeal in Tanks v WorkCover Queensland [2001] QCA 103 by declaring that nothing in the WorkCover Queensland Act 1996 affects or has ever affected the commencement of the limitation period provided by section 11 of the Limitation of Actions Act Insertion of new ch 5 pt 7A Clause 13 provides for a structured settlement to be applied under the WorkCover Queensland Act This new Part 7A allows parties to agree on terms for all or part of a damages payment to be made in the format of periodic payments. These periodic payments may be funded through the use of an annuity or other appropriate method. The Bill allows parties agreeing to settle a claim by a structured settlement to apply to a court to make a consent order approving the terms of the settlement. The Bill also allows the court to make such an order even when the form of the damages payment is not a lump sum payment. Clause 13 is consistent with amendments brought by the Personal Injuries Proceedings Act 2001 to the Motor Accidents Insurance Act Insertion of new ch 5A Clause 14 provides for the inclusion of a new chapter 5A after section 329 of the WorkCover Queensland Act 1996 titled Choice of Law for Damages. The Bill provides for a new Chapter 5A Choice of law for damages to be applied under the WorkCover Queensland Act The Bill defines the damages actions covered by this chapter. The Bill intends to give effect to clause (i) of the Principles Agreement reached by Queensland, New South Wales and Victoria. Clause (i) provides that in relation to common law access: A claim in tort in respect of a work related personal injury suffered by a worker is to be determined in accordance with the substantive law of the State with which the worker s employment is connected (as determined by Clause 8) at the time of injury;

18 18 The relevant rules would apply to actions taken against an employer or a person for whom the employer may be vicariously liable; Courts would apply the substantive law of the home jurisdiction; and Substantive law would be defined and would include any procedural provisions applying under the workers compensation legislation and any other legislation of the home jurisdiction. The Bill provides that if compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in relation to an injury to a worker, the substantive law of that State is the substantive law that governs whether or not a claim for damages in relation to the injury can be made; and if it can be made, the determination of the claim. Insertion of new ch 16 Clause 15 provides for a new chapter 16, before schedule 1 of the WorkCover Queensland Act The new chapter 16 provides for transitional provisions for the amendments to cross border rules made by the Bill. The Bill provides that provisions of the WorkCover Queensland Act 1996 in force immediately before 1 July 2003 will continue to apply in relation to any injury sustained by a worker from an event happening prior to this date. That is, that the cross border rules provided by the Bill will only apply to injuries sustained on or after 1 July Insertion of new sch 2B Clause 16 provides for the inclusion of a new schedule 2B Adjacent Areas. Definitions have been included for continental shelf and territorial sea within the new schedule 2B. For consistency, continental shelf and territorial sea have been given the same meaning as in the Seas and Submerged Land Act The Bill also provides clarification as to adjacent areas applicable for each jurisdiction in Australia. Each adjacent area covered by the Bill is

19 19 consistent with the areas described in the Petroleum (Submerged Lands) Act 1967 (Cwlth). Amendment of sch 3 (Dictionary) Clause 17 provides for the amendment of schedule 3 of the WorkCover Queensland Act 1996 to repeal current definitions for coaster, port, Queensland ship, seafarer, ship and state ship. The Bill replaces the current definition of ship within the WorkCover Queensland Act 1996 from a ship, boat or vessel of any kind designed for use in or on water to any kind of vessel used in navigation by water, however propelled or moved, including (a) a barge, lighter, or other floating vessel; and (b) an air-cushioned vehicle, or other similar craft, used wholly or primarily in navigation by water. A definition for substantive law is referenced as being provided for in chapter 5A of the Bill. State of Queensland 2002