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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Personal Injury Commission Bill 2020
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Interpretation and application of Act by reference to objects 2
5 Definitions 2
Part 2 Establishment of Commission
Division 2.1 Establishment
6 Establishment of Personal Injury Commission 5
7 Appointments and other matters to facilitate establishment of
Commission 5
Division 2.2 Membership
8 Membership of Commission 6
9 Appointment of members 6
10 Qualifications of members 6
11 Functions of members generally 7
Division 2.3 Commission Divisions
12 Divisions of Commission 7
Personal Injury Commission Bill 2020 [NSW]
Contents
Page
13 Division Schedule for Commission Division 8
14 Division Heads 8
15 Assignment of members to Commission Divisions 8
Division 2.4 Functions of President and Division Heads
16 Functions of President 8
17 Functions of Division Heads 9
Division 2.5 Delegations
18 Delegations by the President and Division Heads 9
Division 2.6 Commission rules and procedural directions
19 Rule Committee of Commission 10
20 Commission rules 11
21 Procedural directions 12
Division 2.7 Registrars and other staff
22 Appointment of registrars and other staff 13
23 Functions of registrars 13
Part 3 Functions and constitution of Commission
Division 3.1 Functions
24 Functions of Commission generally 15
Division 3.2 Determination of federal proceedings
25 Definitions 15
26 Applications involving federal jurisdiction may be made to District Court 15
27 Proceedings after leave granted 16
28 Provisions relating to determining substituted proceedings 17
29 Commencement of court proceedings 17
30 Relationship of Division to this Act and other laws 18
Division 3.3 Constitution
31 Constitution of Commission 18
Part 4 Medical assessors, merit reviewers and mediators
Division 4.1 Medical assessors and merit reviewers
32 Definition 19
33 Appointment of medical assessors and merit reviewers 19
34 Functions of decision-makers 19
35 Lists of decision-makers 19
36 Control and direction of decision-makers 20
37 Provision of training and information 20
38 Protection of decision-makers 20
Division 4.2 Mediators
39 Appointment of mediators 20
40 Protection of mediators 21
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Personal Injury Commission Bill 2020 [NSW]
Contents
Page
Part 5 Practice and procedure
Division 5.1 Introduction
41 Application of Part 22
42 Guiding principle to be applied to practice and procedure 22
43 Procedure before Commission generally 22
Division 5.2 Commencement of proceedings
44 What constitutes an application 23
45 Making of applications and appeals 23
46 Service of documents outside the State 23
Division 5.3 Participation in proceedings
47 Intervention by Authority 23
48 Representation before Commission 23
49 Power of Commission to require information 24
50 Power of Commission to provide documents and information to a party 25
51 Summons to appear at conference or hearing 25
Division 5.4 Conduct of proceedings
52 Hearings and conferences 26
53 Reconstitution of Commission during proceedings 26
54 Dismissal of proceedings 26
Division 5.5 Determination of issues and proceedings
55 Commission divided in opinion 26
56 Effect of decisions of Commission 27
57 Reconsideration of decisions of Commission 27
58 Publication of decisions 27
Part 6 Enforcement
59 Recovery of amounts ordered to be paid 29
60 Proceedings for offences 29
Part 7 Miscellaneous
61 Act to bind Crown 30
62 Authentication of documents 30
63 Proof of certain matters not required 30
64 Protection of representatives, witnesses and relevant Commission
officers 30
65 Regulations 30
66 Annual reviews 31
67 Repeal of Workers Compensation Commission Rules 2011 31
68 Review of Act 31
Schedule 1 Savings, transitional and other provisions 33
Schedule 2 Provisions relating to members of Commission 40
Schedule 3 Workers Compensation Division 45
Schedule 4 Motor Accidents Division 48
Schedule 5 Independent Review Officer 50
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Personal Injury Commission Bill 2020 [NSW]
Contents
Page
Schedule 6 Amendment of other legislation 55
Page 4
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2020
New South Wales
Personal Injury Commission Bill 2020
Act No , 2020
An Act to establish the Personal Injury Commission and provide for its functions; and to make
consequential amendments to other legislation.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Personal Injury Commission Bill 2020 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts--
Part 1 Preliminary
1 Name of Act
This Act is the Personal Injury Commission Act 2020.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by this
section.
(2) Schedule 5 commences on the establishment day.
(3) Schedule 6 commences on a day or days to be appointed by proclamation.
3 Objects of Act
The objects of this Act are as follows--
(a) to establish an independent Personal Injury Commission of New South Wales
to deal with certain matters under the workers compensation legislation and
motor accidents legislation and provide a central registry for that purpose,
(b) to ensure the Commission--
(i) is accessible, professional and responsive to the needs of all of its users,
and
(ii) is open and transparent about its processes, and
(iii) encourages early dispute resolution,
(c) to enable the Commission to resolve the real issues in proceedings justly,
quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and
of a high quality,
(e) to promote public confidence in the decision-making of the Commission and
in the conduct of its members,
(f) to ensure that the Commission--
(i) publicises and disseminates information concerning its processes, and
(ii) establishes effective liaison and communication with interested parties
concerning its processes and the role of the Commission,
(g) to make appropriate use of the knowledge and experience of members and
other decision-makers.
4 Interpretation and application of Act by reference to objects
(1) In the interpretation of a provision of this Act, the Commission rules or the
regulations, a construction that would promote the objects of this Act or the provision
is to be preferred to a construction that would not promote those objects.
(2) In the exercise of a discretion conferred by a provision of this Act, the Commission
rules or the regulations, the person exercising the discretion must do so in the way
that would best promote the objects of this Act or the provision concerned.
5 Definitions
(1) In this Act--
Authority means the State Insurance Regulatory Authority constituted under the
State Insurance and Care Governance Act 2015.
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Personal Injury Commission Bill 2020 [NSW]
Part 1 Preliminary
Commission means the Personal Injury Commission of New South Wales
established by this Act.
Commission Division means--
(a) the Workers Compensation Division, or
(b) the Motor Accidents Division.
Commission rules--see section 20.
Deputy President means a Deputy President of the Commission.
Division Head of a Commission Division means the member who is appointed by or
under this Act as the Division Head of that Division.
Division member, in relation to a Commission Division, means a member who is
assigned by or under this Act to that Division.
Division Schedule for a Commission Division--see section 13.
enabling legislation means--
(a) the workers compensation legislation, and
(b) the motor accidents legislation.
establishment day--see section 6.
general member means a general member of the Commission.
Independent Review Officer means the Independent Review Officer appointed
under Schedule 5.
judicial officer has the same meaning as in the Judicial Officers Act 1986.
legislation means an Act or statutory rule.
mediator means a mediator appointed by the President under this Act.
medical assessor means a medical assessor appointed by the President under this
Act.
member means a member of the Commission.
merit reviewer means a merit reviewer appointed by the President under this Act.
modification includes variation, addition, exception, omission or substitution.
Motor Accidents Division means the Motor Accidents Division of the Commission.
motor accidents legislation means--
(a) the Motor Accidents Compensation Act 1999, and
(b) the Motor Accidents (Lifetime Care and Support) Act 2006, and
(c) the Motor Accident Injuries Act 2017, and
(d) any other Act prescribed by the regulations, and
(e) the instruments under each of those Acts.
non-presidential member--see section 8.
President means the President of the Commission.
presidential member--see section 8.
principal member means a principal member of the Commission.
principal registrar means the person employed in the Public Service as the principal
registrar of the Commission.
procedural directions--see section 21.
Public Service employee has the same meaning as in the Government Sector
Employment Act 2013.
registrar means the principal registrar or any other person employed in the Public
Service as a registrar of the Commission.
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Personal Injury Commission Bill 2020 [NSW]
Part 1 Preliminary
relevant Commission officer means each of the following--
(a) the principal registrar or any other registrar,
(b) a medical assessor,
(c) a merit reviewer,
(d) a mediator,
(e) any other kind of person prescribed by the regulations who exercises functions
in connection with the Commission.
Rule Committee means the Rule Committee of the Commission.
senior member means a senior member of the Commission.
work injury damages has the same meaning as in Chapter 7 (New claims procedures)
of the Workplace Injury Management and Workers Compensation Act 1998.
Workers Compensation Acts has the same meaning as in the Workplace Injury
Management and Workers Compensation Act 1998.
Workers Compensation Division means the Workers Compensation Division of the
Commission.
workers compensation legislation means--
(a) workers compensation legislation within the meaning of the Workplace Injury
Management and Workers Compensation Act 1998, and
(b) any other Act prescribed by the regulations (including instruments under the
prescribed Act).
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) A reference in this Act (however expressed) to the exercise by the Commission of its
functions in relation to enabling legislation includes a reference both to its functions
under the enabling legislation and its functions under this Act or any other legislation
in relation to the enabling legislation.
(3) Any provisions of this Act or enabling legislation that are expressed to be subject to
the Commission rules have effect subject to any exceptions, limitations or other
restrictions specified by the Commission rules.
(4) Notes included in this Act do not form part of this Act.
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Part 2 Establishment of Commission
Part 2 Establishment of Commission
Division 2.1 Establishment
6 Establishment of Personal Injury Commission
(1) The Personal Injury Commission of New South Wales is established by this Act on
the establishment day.
Note. Part 3 provides for the functions and constitution of the Commission.
(2) The Commission is to have a seal and the seal is to be judicially noticed.
Note. Section 20 enables the Commission rules to make provision for or with respect to the
form, use and effect of the seal of the Commission.
(3) The establishment day is--
(a) 1 March 2021, or
(b) any later day fixed as the establishment day by a proclamation made under this
section.
(4) The Governor may, by proclamation published on the NSW legislation website, fix
a day later than 1 March 2021 as the establishment day for the purposes of this
section.
(5) The Governor may, by further proclamation published on the NSW legislation
website, revoke a previous proclamation fixing a day as the establishment day and
fix a different day later than 1 March 2021 as the establishment day.
(6) A proclamation under this section has effect only if published before the
establishment day applying for the time being.
7 Appointments and other matters to facilitate establishment of Commission
(1) A person may be appointed to any office or other position under this Act before the
establishment day.
(2) Without limiting subsection (1), the following appointments may be made before the
establishment day--
(a) appointment as the President or as any other kind of member,
(b) appointment as a Division Head of a Commission Division that will be created
on the establishment of the Commission,
(c) appointment as the Independent Review Officer,
(d) appointment as a member of the Rule Committee,
(e) appointment as a registrar (including as the principal registrar) or other
member of staff of the Commission.
(3) To avoid doubt, the provisions of clauses 2-4 of Schedule 5 apply in relation to the
appointment of the Independent Review Officer before the establishment day even
though those provisions have not commenced.
(4) A member appointed before the establishment day may also be assigned by or under
this Act to a Commission Division to be created on the establishment of the
Commission.
(5) Without limiting subsections (1) and (2), the Rule Committee may be constituted
before the establishment day and may before that day--
(a) meet and transact business as if the Commission (and its Divisions) had been
established, and
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Part 2 Establishment of Commission
(b) without limiting paragraph (a), make Commission rules that will come into
force on or after the establishment day.
(6) Any appointment or assignment made before the establishment day has effect on and
from the day specified in the instrument of appointment or assignment as the date of
appointment or assignment as if the Commission (including its Divisions) had been
established.
(7) Despite Division 3 of Part 2 of Schedule 1, a person holding an office to which a
provision of that Division applies who is appointed as a member of the Commission
before the establishment day is not entitled to be paid remuneration as a member of
the Commission while the person continues to receive remuneration for the office.
Division 2.2 Membership
8 Membership of Commission
(1) The Commission is to consist of the following members--
(a) the President,
(b) Deputy Presidents,
(c) principal members,
(d) senior members,
(e) general members.
(2) The President and the Deputy Presidents are referred to in this Act as presidential
members.
(3) The principal members, senior members and general members are referred to in this
Act as non-presidential members.
(4) Schedule 2 sets out additional provisions with respect to members (including their
maximum terms of office).
9 Appointment of members
(1) A person may be appointed as a member if the person is qualified to be appointed as
a member of the kind concerned.
Note. Section 10 makes general provision with respect to qualifications for appointment.
(2) A member is to be appointed by the Minister by written instrument.
(3) The instrument of appointment of a member is to specify--
(a) whether the member has been appointed as the President or a Deputy
President, principal member, senior member or general member, and
(b) the term for which the member has been appointed, and
(c) any entitlements of the member to annual and other leave, and
(d) whether the member is appointed on a full-time basis or on some other basis.
10 Qualifications of members
(1) President
A person is qualified to hold office as the President only if the person is a judge of a
court of record.
(2) Deputy Presidents
A person is qualified to be appointed as a Deputy President only if the person--
(a) is or has been a judicial officer, or
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Part 2 Establishment of Commission
(b) is an Australian lawyer of 7 years' standing and has, in the opinion of the
Minister, special knowledge, skill or expertise in relation to any class of matter
in respect of which the Commission has jurisdiction.
(3) Principal members
A person is qualified to be appointed as a principal member if the person--
(a) is an Australian lawyer of at least 7 years' standing, or
(b) has, in the opinion of the Minister, special knowledge, skill or expertise in
relation to any class of matter in respect of which the Commission has
jurisdiction.
(4) Senior members or general members
A person is qualified to be appointed as a senior member or general member if the
person--
(a) is an Australian lawyer of at least 5 years' standing, or
(b) has, in the opinion of the Minister, special knowledge, skill or expertise in
relation to any class of matter in respect of which the Commission has
jurisdiction.
(5) Appointment of Public Service employees
A Public Service employee who is otherwise qualified for appointment may be
appointed as a general member (but not as any other kind of member).
11 Functions of members generally
(1) A member has any functions conferred or imposed on the member by or under this
Act or any other legislation.
(2) Without limiting subsection (1), a member (other than the President or Division Head
of a Commission Division) appointed before the establishment day has and may
exercise any functions with respect to the establishment of the Commission as may
be assigned to the member under section 16(2).
(3) Each member must comply with any procedural directions given by the President and
the Division Head of the Commission Division to which the member is assigned.
Division 2.3 Commission Divisions
12 Divisions of Commission
(1) On the establishment of the Commission, the Divisions of the Commission are to
be--
(a) the Workers Compensation Division, and
(b) the Motor Accidents Division.
(2) The functions of the Commission in relation to enabling legislation allocated to a
Commission Division are to be exercised in that Division.
Note. Section 5(2) provides that a reference in this Act (however expressed) to the exercise
by the Commission of its functions in relation to enabling legislation includes a reference both
to its functions under the enabling legislation and its functions under this Act or any other
legislation in relation to the enabling legislation.
(3) The functions of the Commission in relation to enabling legislation allocated to a
Commission Division are the functions in relation to the legislation allocated to the
Division by the Division Schedule for the Division.
(4) A Commission Division is composed of the members assigned to it by or under this
Act.
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13 Division Schedule for Commission Division
(1) The Division Schedule for a Commission Division is--
(a) for the Workers Compensation Division--Schedule 3, or
(b) for the Motor Accidents Division--Schedule 4.
(2) The provisions of a Division Schedule for the Commission prevail to the extent of
any inconsistency between those provisions and any other provisions of this Act or
the provisions of the regulations or the Commission rules.
14 Division Heads
(1) The President, or a Deputy President or principal member, may be appointed by the
Minister as the Division Head of a Commission Division--
(a) in the instrument of appointment of the member, or
(b) by subsequent instrument.
(2) A Division Head ceases to hold office as a Division Head if the person--
(a) is removed from office as a Division Head by the Minister, or
(b) resigns the office by written instrument addressed to the Minister, or
(c) ceases to hold office as a member.
(3) However, a person does not cease to hold office as a member simply because the
person has been removed, or has resigned, from office as a Division Head under
subsection (2).
(4) A Division Head has any functions conferred or imposed on the Division Head by or
under this Act or any other legislation.
15 Assignment of members to Commission Divisions
(1) The President is assigned to each Commission Division.
(2) A Division Head is assigned to the Commission Division in respect of which the
person is appointed as the Division Head.
(3) Subject to this Act (including subsections (1) and (2))--
(a) a member is assigned to the Commission Division specified in the member's
instrument of appointment, and
(b) the Minister may vary the assignment of the member at any time by one or
more subsequent instruments, and
(c) a member (other than the President) may be assigned to one or more
Commission Divisions at a time.
(4) An assignment of a member to a Commission Division is subject to any limitations
specified in the member's instrument of appointment or assignment (including in
respect of the kinds of matters that may be dealt with by the member).
Division 2.4 Functions of President and Division Heads
16 Functions of President
(1) The functions of the President are--
(a) to direct the business of the Commission (including determining the places and
times for sittings of the Commission), and
(b) to facilitate the adoption of good administrative practices for the conduct of
the business of the Commission, and
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Part 2 Establishment of Commission
(c) to give directions about, and participate in the development of, the practice and
procedure to be followed by the Commission, and
(d) to manage members in each of the Divisions of the Commission, and
(e) to appoint medical assessors, merit reviewers and mediators for the purposes
of enabling legislation and exercise general direction and control over the
exercise of their functions, and
(f) to advise the Minister about the appointment, reappointment and removal of
members and assist in the process of recruitment at the direction of the
Minister, and
(g) any other functions that are conferred or imposed on the President by or under
this Act or any other legislation.
(2) Without limiting subsection (1), the President has the following functions if
appointed before the establishment day--
(a) to assist in the development of the Commission rules for the Commission to
use on its establishment,
(b) to assign functions to other members appointed before the establishment day
(including any Division Head of a Commission Division) with respect to the
establishment of the Commission,
(c) to assign functions to any registrar or other member of staff appointed before
the establishment day,
(d) any other functions as are necessary or convenient to facilitate the
establishment of the Commission.
17 Functions of Division Heads
(1) The functions of a Division Head of a Commission Division are--
(a) to direct (subject to this Act, the regulations, the Commission rules and any
direction of the President) the business of the Commission in that Division,
and
(b) to exercise any other functions conferred or imposed on the Division Head by
or under this Act or any other legislation.
(2) Without limiting subsection (1), a Division Head of a Commission Division
appointed before the establishment day has and may exercise any functions with
respect to the establishment of the Commission as may be assigned to the Division
Head under section 16(2).
Division 2.5 Delegations
18 Delegations by the President and Division Heads
(1) The President may--
(a) delegate to a Division Head of a Commission Division or other member any
of the functions of the President (other than this power of delegation), or
(b) delegate to a registrar or any other member of staff of the Commission any of
the functions of the President (other than this power of delegation) specified
by a Division Schedule for a Commission Division or prescribed by the
Commission rules.
Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the
delegation of functions.
(2) Despite subsection (1), the President may delegate a function of the President under
section 92 of the Motor Accidents Compensation Act 1999 or section 7.34 of the
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Motor Accident Injuries Act 2017 only to the Division Head of the Motor Accidents
Division.
(3) The Division Head of a Commission Division may--
(a) delegate to another Division member any of the functions of the Division Head
(other than this power of delegation), or
(b) delegate to a registrar or any other member of staff of the Commission any of
the functions of the Division Head (other than this power of delegation)
specified by the Division Schedule for the Division or prescribed by the
Commission rules.
(4) A delegate may subdelegate a function delegated to the delegate if--
(a) for a function of the President--the delegate is authorised in writing to do so
by the President, or
(b) for a function of a Division Head of a Commission Division--the delegate is
authorised in writing to do so by the Division Head.
Division 2.6 Commission rules and procedural directions
19 Rule Committee of Commission
(1) There is to be a Rule Committee of the Commission.
(2) The functions of the Rule Committee are--
(a) to make the Commission rules, and
(b) to ensure that the Commission rules it makes are as flexible and informal as
possible.
(3) The Rule Committee is to be composed of the following--
(a) the President,
(b) each Division Head of a Commission Division,
(c) 1 person nominated for the time being by the Authority,
(d) 1 person nominated for the time being by Unions NSW,
(e) 1 person jointly nominated for the time being by the following--
(i) the Ai Group,
(ii) the Australian Federation of Employers and Industries,
(iii) the NSW Business Chamber,
(f) 2 barristers nominated for the time being by the Council of the New South
Wales Bar Association who, in the opinion of the Council, have special
knowledge, skill or expertise in relation to any class of workers compensation
claims or motor accidents claims,
(g) 2 solicitors nominated for the time being by the Council of the Law Society of
New South Wales who, in the opinion of the Council, have special knowledge,
skill or expertise in relation to any class of workers compensation claims or
motor accidents claims,
(h) 1 person jointly nominated by the Presidents for the time being of the
following--
(i) the Royal Australasian College of Physicians,
(ii) the Royal Australasian College of Surgeons,
(iii) the Royal Australian and New Zealand College of Psychiatrists.
(4) The President is to be the Chairperson of the Rule Committee.
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(5) The President is to appoint one of the other members of the Rule Committee who is
a member of the Commission as Deputy Chairperson of the Rule Committee.
(6) Unless the regulations provide otherwise, the Rule Committee is to regulate its own
procedure.
(7) The following provisions apply in relation to meetings of the Rule Committee unless
the regulations provide, or the Rule Committee decides, otherwise--
(a) the Chairperson of the Rule Committee or, in the absence of the Chairperson,
the Deputy Chairperson of the Committee is to preside at a meeting of the
Committee,
(b) in the absence from a meeting of the Rule Committee of both the Chairperson
and Deputy Chairperson, another member of the Committee who is a Division
Head of a Commission Division is to be chosen by the members present to
preside at the meeting,
(c) the quorum for a meeting of the Rule Committee is a majority of the number
of the members for the time being,
(d) any duly convened meeting of the Rule Committee at which a quorum is
present is competent to transact any business of the Rule Committee and has
and may exercise all the functions of the Rule Committee,
(e) a decision supported by a majority of the votes cast at a meeting of the Rule
Committee at which a quorum is present is the decision of the Committee,
(f) the person presiding at a meeting of the Rule Committee has a deliberative
vote and, in the event of an equality of votes, also has a casting vote.
(8) Despite subsections (6) and (7), a Commission rule cannot take effect unless the
President consents to the rule being made either by--
(a) voting for it at the meeting at which it is proposed to be made, or
(b) giving written consent for its making before or after the meeting.
(9) The President is to call the first meeting of the Rule Committee in the manner the
President thinks fit and (subject to any decision of the Committee) may call any other
meetings of the Committee as the President thinks necessary.
(10) In this section--
motor accidents claims means claims for statutory benefits or damages to which the
motor accidents legislation applies.
workers compensation claims means claims for compensation or damages to which
the workers compensation legislation applies.
20 Commission rules
(1) The Rule Committee may make rules of the Commission (referred to in this Act as
the Commission rules), not inconsistent with this Act or enabling legislation, for or
with respect to the following--
(a) the practice and procedure to be followed in proceedings before the
Commission,
(b) the practice and procedure to be followed in proceedings before medical
assessors, merit reviewers or mediators,
(c) any matter that is, by this Act or enabling legislation, required or permitted to
be prescribed by the Commission rules.
Note. The Commission rules are rules of court within the meaning of section 21 of the
Interpretation Act 1987. Rules of court are statutory rules for the purposes of the Interpretation
Act 1987. As a result, they can be disallowed by either House of Parliament under Part 6 of
that Act.
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(2) Without limiting subsection (1), the Commission rules may make provision for or
with respect to any of the following matters--
(a) the way for referring claims or disputes for assessment or determination or for
making appeals,
(b) the amendment of filed or lodged documents,
(c) non-compliance with provisions concerning practice and procedure (including
the effect of irregularities on proceedings),
(d) the making of assessments and determinations,
(e) the way for specifying an amount of damages, statutory benefits or
compensation,
(f) the parties to proceedings (including the joinder, misjoinder and non-joinder
of parties and rights of intervention of third parties such as the Authority in
proceedings),
(g) the splitting and consolidation of proceedings in the Commission,
(h) the documentation to accompany a reference of a claim or dispute for
assessment or determination or an appeal,
(i) the way for presenting documents and information by parties, including time
limits for the presentation of the documents and information,
(j) the provision of documents and information by a party to a matter to any other
party to the matter,
(k) the way for notifying the parties to proceedings of decisions of, or other action
taken by, the Commission in the proceedings,
(l) the form, use and effect of the seal of the Commission,
(m) the specification of exceptions, limitations or other restrictions in relation to a
provision of this Act or enabling legislation that is expressed to be subject to
the Commission rules.
(3) The Commission rules may authorise or require the use of an electronic case
management system established under clause 2 of Schedule 1 to the Electronic
Transactions Act 2000 in relation to any proceedings in the Commission in respect
of which the use of the system is authorised by an order in force under clause 3 of
Schedule 1 to that Act.
(4) Without limiting the generality of section 42 of the Interpretation Act 1987, the
Commission rules may also prescribe different rules for--
(a) each of the Divisions of the Commission, and
(b) different classes of matters.
(5) This section does not limit the operation of section 78 (Rules of court) of the
Interpretation Act 1987.
21 Procedural directions
(1) The President may give directions (procedural directions) relating to the practice
and procedures to be followed in proceedings before--
(a) the Commission, or
(b) medical assessors or merit reviewers.
(2) The procedural directions must be--
(a) publicly available, and
(b) consistent with this Act and enabling legislation.
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(3) Without limiting subsection (2)(a), it is sufficient compliance with that paragraph if
procedural directions are published on the website of the Commission.
(4) Each of the following must comply with any applicable procedural directions--
(a) members,
(b) medical assessors,
(c) merit reviewers,
(d) the parties to proceedings and their representatives and agents.
Division 2.7 Registrars and other staff
22 Appointment of registrars and other staff
(1) Persons (including the principal registrar and other registrars) may be employed in
the Public Service under the Government Sector Employment Act 2013 to enable the
Commission to exercise its functions.
Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons
so employed (or whose services the Commission makes use of) may be referred to as officers
or employees, or members of staff, of the Commission. Section 47A of the Constitution Act
1902 precludes the Commission from employing staff.
(2) This section does not affect the exercise of the functions under the Government
Sector Employment Act 2013 of the head of the Public Service agency in which those
persons are employed.
(3) The Authority or any other Department of the Government as the regulations may
specify is to provide for the Commission--
(a) facilities (including registry facilities), and
(b) any additional staff that may be necessary.
(4) Without limiting subsection (3), the President may enter into arrangements with any
government agency or other body or person (whether in the public or private sector)
for the provision of assistance to the Commission in connection with the exercise of
its functions.
23 Functions of registrars
(1) A registrar has the functions conferred or imposed on the registrar by or under this
Act or any other legislation.
(2) The principal registrar has the following additional functions--
(a) to assist the President in managing the business and the affairs of the
Commission,
(b) any administrative and other functions conferred or imposed on the principal
registrar by or under this Act or any other legislation.
(3) A registrar may exercise any functions of the principal registrar as may be directed
by the President or principal registrar.
(4) Without limiting subsections (1) and (3)--
(a) the President may, from time to time, designate a registrar to be a registrar for
one or more Divisions of the Commission, and
(b) the designated registrar may (subject to any direction of the President or
principal registrar) exercise the functions of the principal registrar in
connection with proceedings and legislation allocated to the Division or
Divisions concerned.
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(5) Anything done or omitted to be done by a registrar in exercising a function of the
principal registrar has effect as if it had been done or omitted to be done by the
principal registrar.
(6) The Commission rules may make provision for or with respect to the functions of the
principal registrar and other registrars, including authorising registrars to make
specified kinds of decisions of the Commission on behalf of the Commission.
(7) In addition, a registrar (including the principal registrar) appointed before the
establishment day has and may exercise any functions with respect to the
establishment of the Commission as may be assigned to the registrar under section
16(2).
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Part 3 Functions and constitution of Commission
Division 3.1 Functions
24 Functions of Commission generally
The Commission has the jurisdiction and functions that may be conferred or imposed
on it by or under this Act, enabling legislation or any other legislation.
Division 3.2 Determination of federal proceedings
25 Definitions
In this Division--
compensation claim means--
(a) a claim for damages to which the Motor Accidents Compensation Act 1999
applies, or
(b) a claim for statutory benefits to which the Motor Accident Injuries Act 2017
applies, or
(c) a claim for damages to which the Motor Accident Injuries Act 2017 applies, or
(d) a claim for compensation or work injury damages to which the Workplace
Injury Management and Workers Compensation Act 1998 applies.
compensation matter application--see section 26.
federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the
Commonwealth Constitution.
relevant courts legislation means--
(a) the District Court Act 1973 and the rules of court under that Act, and
(b) the Civil Procedure Act 2005 and the regulations and uniform rules under that
Act in their application to the District Court.
substituted proceedings--see section 27.
usual decision-maker, in relation to determining a matter concerning a
compensation claim, means the person or body (whether or not the President or
Commission) on which the function is conferred or imposed by this Act or enabling
legislation.
26 Applications involving federal jurisdiction may be made to District Court
(1) A person with standing to apply to the President or the Commission for a matter
concerning a compensation claim to be determined by the usual decision-maker (a
compensation matter application) may, with the leave of the District Court, make
the application to the Court instead of the President or Commission.
(2) The regulations may make provision for or with respect to--
(a) who has standing to make an application for leave, and
(b) excluding or including applications as compensation matter applications.
(3) The District Court may grant leave for a compensation matter application to be made
to the Court only if it is satisfied that--
(a) an application was first made to the President or Commission, and
(b) the determination of the matter by the usual decision-maker would involve an
exercise of federal jurisdiction, and
(c) the usual decision-maker would otherwise have had jurisdiction enabling the
decision-maker to determine the application.
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(4) An application for leave must be--
(a) filed with the District Court along with--
(i) an application that has been completed in the form and manner required
under this Act or enabling legislation for the kind of compensation
matter application concerned, and
(ii) if the parties to the compensation matter application have reached a
settlement before leave is sought using a resolution process provided
under this Act or enabling legislation--a copy of the terms of
settlement, and
(b) accompanied by the applicable fee (if any) payable for the compensation
matter application unless it has already been paid.
(5) The District Court may--
(a) remit a compensation matter application for determination by the usual
decision-maker if the Court is satisfied that the usual decision-maker has
jurisdiction to determine it, and
(b) do so instead of granting leave or after granting leave.
(6) If the District Court remits a compensation matter application to be dealt with by the
usual decision-maker, the Court may make such orders that it considers appropriate
to facilitate the determination of the application by the decision-maker.
(7) The usual decision-maker is to determine any compensation matter application that
is remitted to the decision-maker in accordance with any orders made by the District
Court.
27 Proceedings after leave granted
(1) If the District Court grants leave for a compensation matter application to be made to
it instead of the President or Commission--
(a) proceedings for the determination of the application (substituted proceedings)
are taken to have been commenced in the Court on the day on which the
application was first made, and
(b) the Court may make such orders (including in relation to the usual
decision-maker) as it considers appropriate to facilitate its determination of the
application.
(2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or
any enabling legislation that applies to the application concerned provided it was first
lodged for exercise by the usual decision-maker before the expiry of the period.
(3) The District Court has, and may exercise, all of the jurisdiction and functions in
relation to the substituted proceedings that the usual decision-maker would have had
if they could exercise federal jurisdiction, including jurisdiction and functions
conferred or imposed by or under this Act, enabling legislation or any other
legislation.
(4) Without limiting subsection (3), the District Court may--
(a) order that a medical assessment or merit review required by or under enabling
legislation (or a review or appeal against the assessment or merit review) be
carried out for the Court by a medical assessor, merit reviewer or panel
specified by the Court, and
(b) make any other orders it thinks fit to facilitate the carrying out of the medical
assessment, merit review or the review or appeal before the panel (including
with respect to the issuing of certificates), and
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(c) adopt (whether with or without variation), or refuse to adopt, the decision of
the medical assessor, merit reviewer or panel as the Court sees fit.
(5) A decision adopted by the Court (whether with or without variation) has effect as a
decision of the Court in respect of the matter concerned.
(6) This section has effect subject to the provisions specified by section 28.
28 Provisions relating to determining substituted proceedings
(1) The following provisions apply in relation to substituted proceedings--
(a) the District Court is to be constituted as provided by its relevant courts
legislation instead of as provided by this Act or enabling legislation,
(b) the legislation applicable to appeals against decisions of the District Court
applies to decisions of the Court instead of appeal provisions specified by or
under this Act, enabling legislation or any other legislation,
(c) the practice and procedure applicable in the District Court under its relevant
courts legislation (and any laws applicable in relation to contempt of court)
apply to the substituted proceedings instead of the practice and procedure
specified by or under this Act, enabling legislation or any other legislation,
(d) the District Court may make orders giving effect to any settlement reached by
the parties even if that settlement was reached before the substituted
proceedings commenced,
(e) any other provisions (including by way of modifications to the provisions of
this Act, enabling legislation or other legislation) as may be prescribed by the
regulations in respect of the substituted proceedings of the kind concerned.
(2) Without limiting subsection (1)(e), the provisions that may be prescribed by the
regulations for the purposes of the paragraph include provisions for or with respect
to the following--
(a) the parties to substituted proceedings,
(b) fees and costs payable in respect of substituted proceedings,
(c) enabling a person or body to determine a matter for the District Court,
(d) the updating of references in provisions of this Act, enabling legislation or
other legislation conferring or imposing functions exercisable in substituted
proceedings by the District Court instead of some other person or body.
(3) The Minister is not to recommend the making of a regulation for the purposes of
subsection (1)(e) unless the Minister certifies that--
(a) if the proposed provisions affect the exercise of jurisdiction or functions by the
Commission--the President has agreed to the provisions, and
(b) if the proposed provisions affect the exercise of jurisdiction or functions by the
District Court--the Chief Judge of the District Court has agreed to the
provisions.
29 Commencement of court proceedings
The regulations may make provision for or with respect to the modification of
provisions of enabling legislation preventing the commencement of proceedings in a
court for a compensation claim unless certain preconditions are met, if compliance
with those preconditions may involve an exercise of federal jurisdiction or be the
subject of substituted proceedings.
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30 Relationship of Division to this Act and other laws
(1) The provisions of this Division (including of regulations made for the purposes of a
provision of this Division) prevail to the extent of any inconsistency between those
provisions and any other provisions of this Act, enabling legislation or other
legislation.
(2) To avoid doubt, subsection (1) applies despite anything in a Division Schedule for a
Commission Division.
Division 3.3 Constitution
31 Constitution of Commission
(1) The Commission is to be constituted by one or more Division members of the
Commission Division to which the function of dealing with the proceedings is
allocated.
Note. A Division Schedule for a Commission Division may, in some cases, make special
provision for the constitution of the Commission when exercising functions allocated to that
Division (including the qualifications of members to sit in specified kinds of proceedings). It
may also provide for certain Division functions to be exercised by a registrar.
(2) The President may give directions as to the members who are to constitute the
Commission for the purposes of any particular proceedings.
Note. The President may delegate the function of constituting the Commission for particular
proceedings to a Division Head of a Commission Division or another member. See section 18.
(3) The President may give directions (whether for particular proceedings, classes of
proceedings or generally) as to which member is to preside at proceedings in the
Commission when the Commission is constituted by more than one member.
(4) There may be more than one sitting of the Commission at the same time.
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Part 4 Medical assessors, merit reviewers and mediators
Part 4 Medical assessors, merit reviewers and mediators
Division 4.1 Medical assessors and merit reviewers
32 Definition
In this Division--
decision-maker means a medical assessor or a merit reviewer.
33 Appointment of medical assessors and merit reviewers
(1) The President may, in accordance with the regulations, appoint persons to be--
(a) medical assessors for the purposes of the Workplace Injury Management and
Workers Compensation Act 1998, or
(b) medical assessors for the purposes of the Motor Accident Injuries Act 2017 or
Motor Accidents Compensation Act 1999 (or both), or
(c) merit reviewers for the purposes of the Motor Accident Injuries Act 2017.
(2) Without limiting subsection (1), a member or a Public Service employee may be
appointed as a decision-maker.
(3) A person is qualified to be appointed as a merit reviewer only if, in the opinion of the
appointor, the person has special knowledge, skill or expertise in respect of the motor
accidents legislation or administrative decision-making.
(4) A merit reviewer is assigned to the Motor Accidents Division.
(5) The terms of appointment of a decision-maker may restrict a decision-maker to
disputes of a specified kind (including to disputes or assessments under specified
legislation).
(6) One or more medical assessors may be appointed as a senior medical assessor, either
by the assessor's instrument of appointment or by a later instrument executed by the
President.
(7) The President is to ensure that, as far as reasonably practicable, there are medical
assessors in the regional areas of the State.
(8) The President may remove a decision-maker from office at any time.
(9) A decision-maker who is not a member or Public Service employee is entitled to be
paid the remuneration (including travelling and subsistence allowances) that the
Minister may from time to time determine.
(10) Nothing in this section prevents a person being appointed as a decision-maker of
more than one class.
34 Functions of decision-makers
A decision-maker has the functions that are conferred on the decision-maker by or
under--
(a) this Act, and
(b) the legislation for which the decision-maker was appointed.
35 Lists of decision-makers
(1) The principal registrar may from time to time issue a list of persons who are
appointed as decision-makers under this Division.
(2) The list is evidence of the appointments concerned.
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36 Control and direction of decision-makers
(1) Decision-makers are, in the exercise of their functions, subject to the general control
and direction of the President.
(2) However, a decision-maker is not subject to control and direction by the Commission
(or a member), the Authority or any Public Service employee with regard to any of
the decisions of the decision-maker that affect the interests of the parties to the merit
review or medical assessment concerned.
(3) The Commission (or a member), the Authority or any Public Service employee may
not overrule or interfere with any decision in respect of any assessment or review.
(4) Subsection (3) does not prevent an appeal or review panel from determining an
appeal or review for which provision is made under enabling legislation.
(5) This section does not affect the exercise of the functions of the head of a Public
Service agency under the Government Sector Employment Act 2013 with respect to
decision-makers who are members of staff of the agency.
37 Provision of training and information
(1) The Commission may make arrangements for the provision of training and
information to medical assessors and merit reviewers to promote accurate and
consistent decisions by medical assessors and merit reviewers.
(2) In providing training for medical assessors, the Commission is to have regard to any
relevant material prepared by the Authority.
38 Protection of decision-makers
A decision-maker is, in any legal proceedings, competent but not compellable to give
evidence or produce documents in respect of any matter in which the decision-maker
was involved in the course of the exercise of functions as a decision-maker.
Note. See also section 64 (Protection of representatives, witnesses and relevant Commission
officers).
Division 4.2 Mediators
39 Appointment of mediators
(1) The President may, in accordance with the regulations, appoint persons to be--
(a) mediators for the purposes of the Workplace Injury Management and Workers
Compensation Act 1998 to mediate on claims for work injury damages within
the meaning of that Act as and when required to do so by the Division Head of
the Workers Compensation Division, or
(b) mediators for any other purposes prescribed by the regulations.
(2) A person is qualified to be appointed as a mediator only if, in the opinion of the
appointor, the person has--
(a) special knowledge, skill or expertise in respect of the enabling legislation
concerned, and
(b) mediation qualifications of a kind prescribed by the regulations.
(3) Mediators are, in the exercise of their functions, subject to the general control and
direction of the President.
(4) Subject to this section, a mediator holds office for the period (not exceeding 5 years)
specified in the instrument of appointment of the mediator, but is eligible for
reappointment.
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(5) A mediator is entitled to be paid the remuneration (including travelling and
subsistence allowances) in respect of work done as a mediator as the Minister may
from time to time determine in respect of the mediator.
(6) A mediator vacates office if the mediator--
(a) dies, or
(b) completes a term of office and is not reappointed, or
(c) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes
an assignment of his or her remuneration for their benefit, or
(d) becomes a mentally incapacitated person, or
(e) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable, or
(f) resigns the office by instrument in writing addressed to the President, or
(g) is removed from office by the President.
(7) The President may at any time remove a mediator from office.
(8) The provisions of the Government Sector Employment Act 2013 relating to the
employment of Public Service employees do not apply to a mediator.
40 Protection of mediators
A mediator is, in any legal proceedings, competent but not compellable to give
evidence or produce documents in respect of any matter in which the mediator was
involved in the course of the exercise of the mediator's functions as a mediator.
Note. See also section 64 (Protection of representatives, witnesses and relevant Commission
officers).
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Part 5 Practice and procedure
Division 5.1 Introduction
41 Application of Part
(1) Each of the provisions of this Part (including as applied by the Commission rules
under subsection (2)) is subject to enabling legislation and the Commission rules.
Note. The Division Schedule for a Commission Division may, in some cases, make special
provision for the practice and procedure to be followed in connection with certain proceedings
allocated to the Division for determination. The provisions of the Division Schedule prevail to
the extent of any inconsistency with the provisions of this Part. See section 13(2).
Section 5(3) also provides that any provisions of this Act or enabling legislation that are
expressed to be subject to the Commission rules have effect subject to any exceptions,
limitations or other restrictions specified by the Commission rules.
Enabling legislation may also make provision for matters relating to practice and procedure in
relation to functions conferred on the Commission, including (for example) specifying periods
within which applications or appeals under that legislation are to be made.
(2) The Commission rules may make provision for or with respect to applying provisions
of this Part (whether with or without modification) to the following--
(a) proceedings before a merit reviewer or medical assessor under enabling
legislation,
(b) proceedings before a panel under enabling legislation determining an appeal
against, or a review of, a decision of a merit reviewer or medical assessor.
42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to
proceedings in the Commission, is to facilitate the just, quick and cost effective
resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it--
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to
give effect to the guiding principle and, for that purpose, to participate in the
processes of the Commission and to comply with directions and orders of the
Commission--
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in
proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so
as to facilitate the resolution of the issues between the parties in such a way that the
cost to the parties and the Commission is proportionate to the importance and
complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Commission to exercise any
functions that are conferred or imposed on it under enabling legislation in a manner
that is inconsistent with the objects or principles for which that legislation provides
in relation to the exercise of those functions.
43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little
formality and technicality as the proper consideration of the matter permits.
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(2) The Commission is not bound by the rules of evidence but may inform itself on any
matter in the manner the Commission thinks appropriate and as the proper
consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial
merits of the case without regard to technicalities or legal forms.
Division 5.2 Commencement of proceedings
44 What constitutes an application
For the purposes of this Act, an application to the Commission includes a referral or
other mechanism (however expressed) by means of which enabling legislation
provides for a matter to be brought to the attention of the Commission for a decision.
45 Making of applications and appeals
An application or appeal to the Commission is to be made in the time and manner
prescribed by enabling legislation or the Commission rules.
46 Service of documents outside the State
The Commission may require a document to be served outside the State.
Division 5.3 Participation in proceedings
47 Intervention by Authority
The Authority--
(a) has a right to be heard in any proceedings before the Commission, and
(b) may, for that purpose, be represented by an Australian legal practitioner or a
member of staff of the Authority or by any other person, and
(c) may apply for an order for which any party may apply in those proceedings.
48 Representation before Commission
(1) A person who is a party to proceedings before the Commission is entitled to be
represented by an Australian legal practitioner or by an agent.
(2) The Commission may refuse to permit a party to be represented by an agent if of the
opinion that the agent does not have sufficient authority to make binding decisions
on behalf of the party.
(3) In proceedings in respect of a claim within the meaning of the Workplace Injury
Management and Workers Compensation Act 1998, the Commission must refuse to
permit an insurer to be represented by an Australian legal practitioner if the claimant
is not represented by an Australian legal practitioner unless leave is granted by the
Commission under subsection (4).
(4) The Commission may, on the application of an insurer, grant leave for an insurer to
be represented by an Australian legal practitioner only if satisfied that--
(a) the representation would enable the matter to be dealt with more efficiently,
taking into account the complexity of the matter, or
(b) it would be unfair not to allow the insurer to be represented because the insurer
is unable to represent the insurer effectively, or
(c) it would be unfair not to allow the insurer to be represented, taking into
account fairness between the insurer and other parties in the proceedings.
(5) The Commission may at any time revoke leave it has granted under subsection (4).
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(6) A party to proceedings before the Commission is entitled to representation or
assistance (for example, the assistance of an interpreter) as may be necessary to
enable the party to communicate adequately at any conference or hearing.
(7) The Commission must take into account any written submission prepared by an
Australian legal practitioner acting for a party to proceedings and submitted by or on
behalf of the party (whether or not the party is represented by an Australian legal
practitioner at any conference or hearing in the proceedings).
(8) In this section--
agent, in relation to proceedings allocated to the Workers Compensation Division,
means--
(a) an officer of an industrial organisation of employers or employees registered
under the Industrial Relations Act 1996, or
(b) an officer of an association of employers or employees registered under the
Fair Work Act 2009 of the Commonwealth, or
(c) a person employed by a licensed insurer or former licensed insurer or by a
self-insurer within the meaning of the Workplace Injury Management and
Workers Compensation Act 1998, or
(d) a person employed by a law practice within the meaning of the Legal
Profession Uniform Law (NSW).
49 Power of Commission to require information
(1) The Commission may give a direction in writing to any person (whether or not a
party to proceedings before the Commission) requiring the person--
(a) to produce, at a time and place specified in the direction, specified documents
in the possession of the person, or
(b) to provide specified information within a time specified in the direction that
the Commission considers relevant to the proceedings, or
(c) to give within a time specified in the direction any specified consent, authority
or direction that the Commission considers necessary or desirable for the
purpose of facilitating the provision by another person of documents or
information pursuant to a direction under subsection (2).
(2) The direction may require the documents to be produced or the information to be
provided--
(a) to the Commission or to another party to proceedings before the Commission,
in the case of a direction given to a party to the proceedings, or
(b) to the Commission in the case of a direction given to a person who is not a
party to proceedings before the Commission.
(3) A person must not, without reasonable excuse, fail to comply with a direction given
to the person.
Maximum penalty--50 penalty units.
(4) If a person does not, without reasonable excuse, produce a document or provide
information in compliance with a direction given to the person under this section, the
person cannot as a party to proceedings before the Commission or a court have the
document or information admitted in the proceedings.
(5) The Commission may exercise powers under this section at the request of a party to
proceedings before the Commission or of the Commission's own motion.
(6) A Division Head of a Commission Division or the principal registrar has and may
exercise any power of the Commission under this section.
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(7) The regulations or the Commission rules may make provision for or with respect to
any of the following matters--
(a) exempting specified kinds of documents or information from the operation of
this section,
(b) specifying cases and circumstances in which the Commission is required to
exercise the Commission's powers under this section,
(c) specifying cases and circumstances in which the Commission is not to exercise
the Commission's powers under this section.
50 Power of Commission to provide documents and information to a party
(1) If documents or information relevant to proceedings before the Commission are
produced or provided to the Commission by a party to the proceedings or another
person (whether or not in compliance with a requirement under this Act), the
Commission may produce or provide the documents or information to--
(a) any other party to the proceedings, or
(b) any Australian legal practitioner representing any party, or
(c) a medical practitioner (including a medical assessor).
(2) The Commission may, when producing or providing information or documents to an
Australian legal practitioner or medical practitioner, direct that the person must not
cause or permit disclosure of the information, or the information in the documents,
to another party.
(3) An Australian legal practitioner or medical practitioner must not contravene the
Commission's direction under this section.
Maximum penalty--50 penalty units.
(4) The regulations or the Commission rules may make provision for or with respect to
any of the following matters--
(a) exempting specified kinds of documents or information from the operation of
this section,
(b) specifying cases and circumstances in which the Commission is required to
exercise the Commission's powers under this section,
(c) specifying cases and circumstances in which documents or information
produced or provided to the Commission may not be produced or provided by
the Commission to another party to the proceedings or to an Australian legal
practitioner or medical practitioner.
51 Summons to appear at conference or hearing
(1) Subject to subsection (2), the Division Head of a Commission Division may issue a
summons, in circumstances prescribed by the Commission rules, requiring the
attendance of a person at any conference or hearing before the Commission in
connection with proceedings before the Commission.
(2) If the proceedings are allocated to the Motor Accidents Division, a summons may be
issued only to a party to the proceedings.
(3) A person must not, without reasonable excuse, fail to comply with a summons served
on the person under this section.
Maximum penalty--50 penalty units.
(4) In this section--
conference includes a conference at which the parties (or some of them) participate
by telephone, closed-circuit television or other means.
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Division 5.4 Conduct of proceedings
52 Hearings and conferences
(1) Proceedings need not be conducted by formal hearing and may be conducted by way
of a conference between the parties, including a conference at which the parties (or
some of them) participate by telephone, closed-circuit television or other means.
(2) Subject to any procedural directions, the Commission may hold a conference with all
relevant parties in attendance and with relevant experts in attendance, or a separate
conference in private with any of them.
(3) If the Commission is satisfied that sufficient information has been supplied to it in
connection with proceedings, the Commission may exercise functions under this Act
and enabling legislation without holding any conference or formal hearing.
(4) An assessment or determination is to be made by the Commission having regard to
information that is conveniently available to the Commission, even if one or more of
the parties to the assessment or determination proceedings do not co-operate or cease
to co-operate.
53 Reconstitution of Commission during proceedings
(1) The President may replace the member, or one of the members, constituting the
Commission after the consideration of a matter by the Commission has commenced
if, before the matter is determined, the member--
(a) becomes unavailable for any reason, or
(b) ceases to be a member, or
(c) ceases to have a qualification required for participation in the proceedings.
(2) The President may not replace a member unless the President has first--
(a) afforded the parties an opportunity to make submissions about the proposed
replacement, and
(b) taken their submissions into account.
(3) The Commission as reconstituted is to have regard to the evidence, submissions and
decisions in relation to the matter that were given or made before the Commission
was reconstituted.
54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it--
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise
misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
Division 5.5 Determination of issues and proceedings
55 Commission divided in opinion
If the Commission is constituted by more than one member for the purposes of the
determination of any proceedings and the members are divided in opinion, the
opinion of the majority is taken to be the decision of the Commission.
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56 Effect of decisions of Commission
(1) Except as otherwise provided by this Act or enabling legislation, a decision of the
Commission under the Workers Compensation Acts is final and binding on the
parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not--
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into
question by any court.
(3) To avoid doubt, this section does not limit any power of the Supreme Court to
provide relief for jurisdictional error in proceedings for the judicial review of a
decision of the Commission.
57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the
Commission in the Workers Compensation Division and rescind, alter or amend any
decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection
(1)), the President is satisfied that the decision contains an obvious error, the
President may--
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the
President may--
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of
the alteration is to be given to the parties in the proceedings in the manner directed
by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous
certificate.
(6) Examples of obvious errors in a decision are where--
(a) there is an obvious clerical or typographical error in the text of the notice or
statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.
58 Publication of decisions
(1) The Commission must cause details of the following to be published in accordance
with the Commission rules--
(a) decisions of the Commission,
(b) decisions of merit reviewers under Division 7.4 of the Motor Accident Injuries
Act 2017,
(c) decisions of review panels for merit reviewers under Division 7.4 of the Motor
Accident Injuries Act 2017,
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Part 5 Practice and procedure
(d) decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7
of the Workplace Injury Management and Workers Compensation Act 1998,
(e) decisions of review panels for medical assessments under Part 3.4 of the Motor
Accidents Compensation Act 1999 or Division 7.5 of the Motor Accident
Injuries Act 2017,
(f) any other decisions prescribed by the Commission rules.
(2) The Commission may make a summary of the details of agreements registered under
the former section 66A of the Workers Compensation Act 1987 (before its
substitution by the Workers Compensation Legislation Amendment (Miscellaneous
Provisions) Act 2005) available for public inspection by--
(a) employers, insurers, workers and the Authority (and their legal
representatives), and
(b) persons or classes of persons as may be prescribed by the regulations.
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Part 6 Enforcement
Part 6 Enforcement
59 Recovery of amounts ordered to be paid
(1) For the purposes of the recovery of any amount ordered to be paid by the
Commission (including costs, but not including a civil or other penalty), the amount
is to be certified by the principal registrar.
(2) A certificate given under this section must identify the person liable to pay the
certified amount.
(3) A certificate of the principal registrar under this section that is filed in the registry of
a court having jurisdiction to give judgment for a debt of the same amount as the
amount stated in the certificate, operates as such a judgment.
60 Proceedings for offences
(1) Proceedings for an offence under this Act may be dealt with summarily before the
Local Court.
(2) Proceedings for an offence under this Act may be commenced only by any of the
following persons--
(a) the Minister,
(b) a person with the written consent of either the Minister or another person or
body authorised by the Minister for that purpose.
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Part 7 Miscellaneous
Part 7 Miscellaneous
61 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative
power of the Parliament of New South Wales permits, the Crown in all its other
capacities.
62 Authentication of documents
(1) Every document requiring authentication by the Commission is sufficiently
authenticated without the seal of the Commission if it is--
(a) signed by any member or a registrar, or
(b) authenticated in a manner prescribed by the regulations.
(2) Judicial notice is to be taken of the signature of the member concerned or a registrar
when appearing on a document issued by the Commission.
63 Proof of certain matters not required
In any legal proceedings, no proof is required (unless evidence to the contrary is
given) of--
(a) the constitution of the Commission, or
(b) any decision of the Commission, or
(c) the appointment or qualifications of, or the holding of office by, a member,
registrar, mediator, medical assessor or merit reviewer.
Note. See also section 52 (Proceedings of statutory bodies) of the Interpretation Act 1987.
64 Protection of representatives, witnesses and relevant Commission officers
(1) An Australian legal practitioner, or any other person appearing before the
Commission on behalf of a party in any proceedings, has the same protection and
immunity as a barrister has in appearing for a party in proceedings in the Supreme
Court.
(2) Subject to this Act, a person summoned to attend or appearing before the
Commission as a witness has the same protection, and is, in addition to the penalties
provided by this Act, subject to the same liabilities, as a witness in proceedings in the
Supreme Court.
(3) Any thing done or omitted to be done by a relevant Commission officer in exercising
the functions conferred or imposed on the relevant Commission officer by or under
this or any other Act does not, if the thing was done or omitted to be done in good
faith, subject the relevant Commission officer personally to any action, liability,
claim or demand.
Note. See also clause 4 of Schedule 2 with respect to the protections and immunities of
members of the Commission when exercising their functions.
(4) Any liability that would attach to a person were it not for the operation of subsection
(3) attaches instead to the Crown.
(5) In this section--
barrister has the same meaning as in the Legal Profession Uniform Law (NSW).
65 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
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Part 7 Miscellaneous
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) Without limiting subsection (1), the regulations may make provision for or with
respect to the following--
(a) qualifications or criteria for the appointment of mediators, medical assessors
or merit reviewers,
(b) the procedure of the Rule Committee.
66 Annual reviews
(1) As soon as practicable after 30 June (but on or before 31 December) of each year, the
President must provide both the Minister and the Authority with a review (an annual
review) of the operations of the Commission for the period ending on 30 June in that
year.
(2) The President is, within 90 days of providing an annual review to the Minister, to
cause the review to be published on a website the President considers appropriate.
(3) The review is to be tabled in Parliament and for that purpose the Minister is to lay the
report or cause it to be laid before both Houses of Parliament as soon as practicable
after receiving the review.
(4) The review is to include the following information--
(a) the number and type of proceedings instituted in each Commission Division
during the year,
(b) the sources of those proceedings,
(c) the number and type of proceedings that were made during the year but not
dealt with,
(d) the extent to which the operations of the Commission are funded by each
operational fund,
(e) any other information that the President considers appropriate to be included
or the Minister directs to be included.
(5) In this section--
operational fund means each of the following--
(a) the Motor Accidents Operational Fund (the SIRA Fund) under the Motor
Accident Injuries Act 2017,
(b) the Motor Accidents Operational Fund under the Motor Accidents
Compensation Act 1999,
(c) the Workers Compensation Operational Fund under the Workplace Injury
Management and Workers Compensation Act 1998.
67 Repeal of Workers Compensation Commission Rules 2011
The Workers Compensation Commission Rules 2011 are repealed on the
establishment day.
68 Review of Act
(1) The Minister is to undertake 2 reviews of this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act remain
appropriate for securing those objectives.
(2) The reviews are to be undertaken as soon as possible after the period of 2 years, and
then 7 years, from the date of assent to this Act.
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Part 7 Miscellaneous
(3) A report on the outcome of each review is to be tabled in each House of Parliament
within 12 months after the end of the period of 2 years or 7 years (as the case
requires).
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Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision has effect despite anything to the contrary in this Schedule. The
regulations may make separate savings and transitional provisions or amend this
Schedule to consolidate the savings and transitional provisions.
(3) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(4) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as--
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
(5) Without limiting subclause (1), provision may be made for or with respect to
proceedings (whether or not made or commenced or initiated) or rights to bring
proceedings, or the exercise of any functions, in connection with services, bodies or
offices that are abolished or transferred by operation of Part 2 of this Schedule.
(6) In this clause--
proceedings includes applications, requests, referrals, reviews and appeals
(including those made to courts).
Part 2 Provisions consequent on enactment of this Act
Division 1 Interpretation
2 Definitions
(1) In this Part--
CARS means the Motor Accidents Claims Assessment and Resolution Service of the
Authority referred to in section 98 of the Motor Accidents Compensation Act 1999
immediately before the establishment day.
current approved medical specialist means any person who, immediately before the
establishment day, was an approved medical specialist appointed under Part 7 of
Chapter 7 of the Workplace Injury Management and Workers Compensation Act
1998 (including a senior approved medical specialist).
current claims assessor means any person (other than the current Principal Claims
Assessor) who, immediately before the establishment day, was a claims assessor
under the Motor Accident Injuries Act 2017 or the Motor Accidents Compensation
Act 1999 (or both).
current mediator means any person who, immediately before the establishment day,
was a mediator appointed under section 318F of the Workplace Injury Management
and Workers Compensation Act 1998.
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Schedule 1 Savings, transitional and other provisions
current medical assessor means any person who, immediately before the
establishment day, was a medical assessor under the Motor Accident Injuries Act
2017 or the Motor Accidents Compensation Act 1999 (or both).
current merit reviewer means any person who, immediately before the establishment
day, was a merit reviewer under the Motor Accident Injuries Act 2017.
current Principal Claims Assessor means any person who, immediately before the
establishment day, was the Principal Claims Assessor under the Motor Accident
Injuries Act 2017 or the Motor Accidents Compensation Act 1999 (or both).
current WCC member means a person who was a member of the WCC immediately
before the establishment day.
current WIRO means any person who, immediately before the establishment day,
was the Workers Compensation Independent Review Officer under the Workplace
Injury Management and Workers Compensation Act 1998.
DRS means the Dispute Resolution Service of the Authority established under
Division 7.2 of the Motor Accident Injuries Act 2017 provided in respect of motor
vehicle accidents occurring on or after 1 December 2017.
MAS means the Motor Accidents Medical Assessment Service of the Authority
referred to in section 57A of the Motor Accidents Compensation Act 1999
immediately before the establishment day.
WCC means the Workers Compensation Commission established by the Workplace
Injury Management and Workers Compensation Act 1998.
(2) If a provision of this Part provides for a matter or other thing to occur on a specified
day, the matter or thing is taken to have occurred at the beginning of the specified
day.
Division 2 Abolition of WCC, certain offices and dispute resolution
services provided by Authority
3 Abolition of WCC and various motor accident services
Each of the following is abolished on the establishment day--
(a) the DRS,
(b) the MAS,
(c) the CARS,
(d) the WCC.
4 Certain office holders cease to hold office on establishment day
(1) Any person who, immediately before the establishment day, held any of the
following offices ceases to hold it on and from the establishment day--
(a) President of the WCC,
(b) Deputy President of the WCC,
(c) Registrar of the WCC,
(d) Senior Arbitrator of the WCC,
(e) Arbitrator of the WCC,
(f) Workers Compensation Independent Review Officer under the Workplace
Injury Management and Workers Compensation Act 1998,
(g) senior approved medical specialist under the Workplace Injury Management
and Workers Compensation Act 1998,
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Schedule 1 Savings, transitional and other provisions
(h) approved medical specialist under the Workplace Injury Management and
Workers Compensation Act 1998,
(i) mediator under the Workplace Injury Management and Workers
Compensation Act 1998.
(2) Any person who, immediately before the establishment day, held any of the
following offices ceases to hold it on and from the establishment day--
(a) Principal Claims Assessor under the Motor Accident Injuries Act 2017 or the
Motor Accidents Compensation Act 1999 (or both),
(b) claims assessor under the Motor Accident Injuries Act 2017 or the Motor
Accidents Compensation Act 1999 (or both),
(c) medical assessor under the Motor Accident Injuries Act 2017 or the Motor
Accidents Compensation Act 1999 (or both),
(d) merit reviewer under the Motor Accident Injuries Act 2017.
(3) If a person ceases to hold an office by operation of this clause, the person is--
(a) not entitled to any remuneration or compensation because of the loss of that
office, and
(b) eligible (if otherwise qualified) to be appointed to hold an office in the
Commission if Division 3 or Division 4 does not already operate to make the
appointment.
Note. Division 3 and Division 4 provide for certain persons who cease to hold office by
operation of this clause to be transferred to the Commission.
(4) This clause has effect despite anything to the contrary in any other legislation
concerning the circumstances or processes for the removal of (or the vacation of
office by) holders of the offices referred to in subclause (1) or (2).
Division 3 Transfers concerning members of Commission
5 WCC members to become members of Commission
(1) Transfer of WCC President
A current WCC member who is the President of the WCC is taken, on and from the
establishment day, to have been appointed under this Act as the President of the
Commission.
(2) Transfer of WCC Deputy Presidents
A current WCC member who is a Deputy President of the WCC is taken, on and from
the establishment day, to have been--
(a) appointed under this Act as a Deputy President of the Commission, and
(b) assigned under this Act to the Workers Compensation Division.
(3) Transfer of WCC Registrar
A current WCC member who is the Registrar of the WCC is taken, on and from the
establishment day, to have been--
(a) appointed under this Act as a principal member of the Commission, and
(b) appointed under this Act as the Division Head of the Workers Compensation
Division.
(4) Transfer of WCC Senior Arbitrators
A current WCC member who is a Senior Arbitrator of the WCC is taken, on and from
the establishment day, to have been--
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Schedule 1 Savings, transitional and other provisions
(a) appointed under this Act as a senior member of the Commission, and
(b) assigned under this Act to the Workers Compensation Division.
(5) Transfer of other WCC Arbitrators
A current WCC member who is an Arbitrator (other than a Senior Arbitrator) of the
WCC is taken, on and from the establishment day, to have been--
(a) appointed under this Act as a general member of the Commission, and
(b) assigned under this Act to the Workers Compensation Division.
(6) Subclause (5) does not apply to an Arbitrator who is a Public Service employee
immediately before the establishment day.
6 Certain motor accident claims assessors to become members of Commission
(1) The current Principal Claims Assessor under the Motor Accident Injuries Act 2017 is
taken, on and from the establishment day, to have been--
(a) appointed under this Act as a principal member of the Commission, and
(b) appointed under this Act as the Division Head of the Motor Accidents
Division.
(2) A current claims assessor is taken, on and from the establishment day, to have been--
(a) appointed under this Act as a general member of the Commission, and
(b) assigned under this Act to the Motor Accidents Division.
(3) Subclause (2) does not apply to a current claims assessor who is a Public Service
employee immediately before the establishment day.
7 Effect of Division in relation to transfers
(1) Despite clause 3 of Schedule 2, a person who is appointed as a member of the
Commission by operation of this Division is taken to hold office as a member of the
Commission for whichever of the following is the greater--
(a) the period of 12 months commencing on the establishment day,
(b) the balance of the term to which the person was appointed to the abolished
office.
(2) A person appointed as a member of the Commission by operation of this clause is
taken to have been appointed on a basis other than full-time if the person's abolished
office was not held on a full-time basis.
(3) The Minister may issue an appropriate instrument of appointment to a person
appointed as a member of the Commission by operation of this Division.
(4) A person's appointment as a member of the Commission is effective whether or not
an instrument of appointment is issued under subclause (3).
(5) This Division does not--
(a) apply to a person who is appointed under this Act to be a member of the
Commission before the establishment day, or
(b) prevent a person who becomes a member of the Commission or the holder of
another position in the Commission by operation of this Division from--
(i) being appointed, with the consent of the person, to a different or
additional office or position in the Commission under this Act, or
(ii) vacating office or the position, subject to subclauses (1) and (2), in
accordance with the provisions of this Act.
(6) In this clause--
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Schedule 1 Savings, transitional and other provisions
abolished office, in relation to a person appointed as a member of the Commission
by operation of this Division, means the office held by the person immediately before
the establishment day.
Division 4 Transfers concerning WIRO, medical assessors, merit
reviewers and mediators
8 Transfer of current WIRO
The current WIRO is taken, on and from the establishment day, to have been
appointed as the Independent Review Officer under this Act.
9 Transfer of current approved medical specialists
(1) A current approved medical specialist is taken, on and from the establishment day,
to have been appointed under this Act as a medical assessor for the purposes of the
Workplace Injury Management and Workers Compensation Act 1998.
(2) Subclause (1) does not apply to a current approved medical specialist who is a Public
Service employee immediately before the establishment day.
10 Transfer of current medical assessors
(1) A current medical assessor is taken, on and from the establishment day, to have been
appointed as a medical assessor under this Act for the purposes of the Act under
which they were originally appointed.
(2) Subclause (1) does not apply to a current medical assessor who is a Public Service
employee immediately before the establishment day.
11 Transfer of current merit reviewers
(1) A current merit reviewer is taken, on and from the establishment day, to have been
appointed as a merit reviewer under this Act for the purposes of the Motor Accident
Injuries Act 2017.
(2) Subclause (1) does not apply to a current merit reviewer who is a Public Service
employee immediately before the establishment day.
12 Transfer of current mediators
(1) A current mediator is taken, on and from the establishment day, to have been
appointed as a mediator under this Act for the purposes of the Workplace Injury
Management and Workers Compensation Act 1998.
(2) Subclause (1) does not apply to a current mediator who is a Public Service employee
immediately before the establishment day.
13 Effect of Division in relation to transfer of Independent Review Officer
(1) A person who is appointed as the Independent Review Officer by operation of this
Division is taken to hold office as the Independent Review Officer for the balance of
the term to which the person was appointed to the abolished office.
(2) A person appointed as the Independent Review Officer by operation of this clause is
taken to have been appointed on a basis other than full-time if the person's abolished
office was not held on a full-time basis.
(3) The Governor may issue an appropriate instrument of appointment to a person
appointed as the Independent Review Officer by operation of this Division.
(4) A person's appointment as the Independent Review Officer is effective whether or
not an instrument of appointment is issued under subclause (3).
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(5) This Division does not--
(a) apply to a person who is appointed under this Act as the Independent Review
Officer before the establishment day, or
(b) prevent a person who becomes the Independent Review Officer by operation
of this Division from--
(i) being appointed, with the consent of the person, to a different or
additional office or position in the Commission under this Act, or
(ii) vacating office or the position, subject to subclauses (1) and (2), in
accordance with the provisions of this Act.
(6) In this clause--
abolished office, in relation to a person appointed as the Independent Review Officer
by operation of this Division, means the office held by the person immediately before
the establishment day.
14 Effect of Division in relation to transfers of medical assessors, merit reviewers and
mediators
(1) A person who is appointed as a medical assessor, merit reviewer or mediator by
operation of this Division is taken to hold office as a medical assessor, merit reviewer
or mediator for whichever of the following is the greater--
(a) the period of 12 months commencing on the establishment day,
(b) the balance of the term to which the person was appointed to the abolished
office.
(2) A person appointed as a medical assessor, merit reviewer or mediator by operation
of this clause is taken to have been appointed on a basis other than full-time if the
person's abolished office was not held on a full-time basis.
(3) The President may issue an appropriate instrument of appointment to a person
appointed as a medical assessor, merit reviewer or mediator by operation of this
Division.
(4) A person's appointment as a medical assessor, merit reviewer or mediator is effective
whether or not an instrument of appointment is issued under subclause (3).
(5) This Division does not prevent a person who becomes a member of the Commission
or the holder of another position in the Commission by operation of this Division
from--
(a) being appointed, with the consent of the person, to a different or additional
office or position in the Commission under this Act, or
(b) vacating office or the position, subject to subclauses (1) and (2), in accordance
with the provisions of this Act.
(6) In this clause--
abolished office, in relation to a person appointed as a medical assessor, merit
reviewer or mediator by operation of this Division, means the office held by the
person immediately before the establishment day.
Division 5 Miscellaneous
15 Interim directions concerning practice and procedure
(1) Until Commission rules first come into force, the President may issue directions
(interim practice and procedure directions) concerning any matter for or in respect
of which the Commission rules may make provision.
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(2) An interim practice and procedure direction--
(a) must be published on the Commission's website, and
(b) takes effect on the day it is published or any later day specified in the direction,
and
(c) ceases to have effect when the Commission rules first come into force, unless
sooner revoked, and
(d) may be amended, replaced or revoked by a further direction.
(3) An interim practice and procedure direction is taken to be a Commission rule for the
purposes of any provision of legislation that refers to a matter for which the
Commission rules may or must make provision (however described).
(4) Without limiting subclause (3), an interim practice and procedure direction operates
as a Commission rule for the purposes of this Act.
(5) However, subclause (3) does not apply in respect of the following provisions--
(a) sections 39-41 of the Interpretation Act 1987,
(b) any other provision of legislation prescribed by the regulations.
(6) This clause does not limit the power of the President to issue procedural directions
under section 21.
16 Making of first principal Regulation
Part 2 of the Subordinate Legislation Act 1989 is taken to apply to the first regulation
made under this Act that is a principal statutory rule (within the meaning of the
Subordinate Legislation Act 1989) as if the Minister administering the Subordinate
Legislation Act 1989 had given a certificate under section 6(1)(b) of that Act with
respect to the regulation.
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Schedule 2 Provisions relating to members of Commission
Schedule 2 Provisions relating to members of Commission
section 8
1 Definition
In this Schedule--
judicial office means the office of--
(a) Magistrate, or
(b) Judge of the District Court, or
(c) Judge of the Land and Environment Court, or
(d) Judge of the Supreme Court.
2 Application of Schedule to acting members
(1) Subject to this clause, all of the provisions of this Schedule apply to acting members.
(2) In this clause--
acting member means a person appointed by or under this Act to act as a member.
3 Terms of appointment
(1) Subject to this Act, a member holds office for the period specified in the member's
instrument of appointment.
(2) The term of an appointment must not exceed--
(a) for a presidential member--7 years, or
(b) for a non-presidential member--5 years.
(3) A member is eligible for reappointment.
4 Protection and immunities of member
A member has, in the performance of functions performed as a member, the same
protection and immunities as a Judge of the Supreme Court.
5 Remuneration
(1) The following members are entitled to be paid remuneration (including travelling
and subsistence allowances) in accordance with the Statutory and Other Offices
Remuneration Act 1975--
(a) a presidential member,
(b) any other member appointed on a full-time basis by the member's instrument
of appointment or by a later instrument executed by the Minister.
(2) A member who is a Public Service employee is not entitled to receive remuneration
under this Act while receiving remuneration as a Public Service employee.
(3) Any other member is entitled to be paid remuneration (including travelling and
subsistence allowances) in respect of work done as a member as the Minister
determines from time to time in respect of the member.
6 Vacancy in office
(1) The office of a member becomes vacant if the member--
(a) dies, or
(b) completes a term of office and is not reappointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
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(d) is nominated for election as a member of the Legislative Council or of the
Legislative Assembly or as a member of a House of Parliament or a legislature
of another State or Territory or of the Commonwealth, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes
an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable, or
(h) is removed from office under this clause.
(2) The Minister may remove a member from office for incapacity, incompetence or
misbehaviour.
7 Acting President
(1) If the President is absent from duty, the most senior Deputy President is to be Acting
President unless the Minister makes an appointment under subclause (2).
(2) The Minister may appoint a Deputy President or other member to be Acting
President during the absence of the President from duty.
(3) The Minister may make any appointment for a particular absence or for any absence
that occurs from time to time.
(4) An Acting President has the functions of the President and anything done by an
Acting President in the exercise of those functions has effect as if it had been done
by the President.
(5) In this clause, absence from duty includes a vacancy in the office of President.
8 Acting Deputy Presidents
(1) If a Deputy President is absent from duty, the Minister may appoint a person to be an
Acting Deputy President during the absence of the Deputy President.
(2) The Minister may make an appointment for a particular absence or for any absence
that occurs from time to time.
(3) The Minister may also appoint such additional Acting Deputy Presidents as the
Minister determines may be necessary having regard to the workload and the need
for the proper and efficient exercise of the Commission's functions.
(4) A person may be appointed as an Acting Deputy President only if the person is
eligible to be appointed as a Deputy President.
(5) An Acting Deputy President may be appointed for up to 12 months but may, despite
the expiration of that period, complete or otherwise continue to deal with any matters
relating to proceedings that have been heard, or partly heard, by the Acting Deputy
President before the expiration of that period.
(6) A retired judicial officer may be appointed as an Acting Deputy President even
though that person has reached the age of 72 years (or will have reached that age
before the appointment expires).
(7) An Acting Deputy President has the functions of a Deputy President and anything
done by an Acting Deputy President in the exercise of those functions has effect as
if it had been done by a Deputy President.
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(8) Clause 3 does not apply to an Acting Deputy President.
(9) In this clause--
absence from duty includes a vacancy in the office of a Deputy President and an
absence due to a Deputy President being Acting President in accordance with clause
7.
9 Acting principal member
(1) If a principal member is absent from duty, the Minister may appoint a person to be
an acting principal member during the absence of the principal member.
(2) The Minister may make an appointment for a particular absence or for any absence
that occurs from time to time.
(3) The Minister may also appoint such additional acting principal members as the
Minister determines may be necessary having regard to the workload and the need
for the proper and efficient exercise of the Commission's functions.
(4) A person may be appointed as an acting principal member only if the person is
eligible to be appointed as a principal member.
(5) An acting principal member may be appointed for up to 12 months but may, despite
the expiration of that period, complete or otherwise continue to deal with any matters
relating to proceedings that have been heard, or partly heard, by the acting principal
member before the expiration of that period.
(6) An acting principal member has the functions of a principal member and anything
done by an acting principal member in the exercise of those functions has effect as if
it had been done by a principal member.
(7) Clause 3 does not apply to an acting principal member.
(8) In this clause--
absence from duty includes a vacancy in the office of a principal member and an
absence due to a principal member being an Acting Deputy President in accordance
with clause 8.
10 Seniority
(1) The members have seniority according to the following order of precedence--
(a) the President,
(b) Deputy Presidents according to the days on which their appointments took
effect or, if the appointments of 2 of them took effect on the same day,
according to the precedence assigned to them by their instruments of
appointment,
(c) principal members according to the days on which their appointments took
effect or, if the appointments of 2 of them took effect on the same day,
according to the precedence assigned to them by their instruments of
appointment,
(d) senior members according to the days on which their appointments took effect
or, if the appointments of 2 of them took effect on the same day, according to
the precedence assigned to them by their instruments of appointment,
(e) general members according to the days on which their appointments took
effect.
(2) If a person is reappointed under this Act, the person's seniority is to be determined
as if there had been no break in the person's service.
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Schedule 2 Provisions relating to members of Commission
11 Members and former members may complete unfinished matters
(1) This clause applies to a member (an affected member) dealing with any matters
relating to proceedings before the Commission that have been heard or partly heard
(or were otherwise the subject of deliberations) by the member if, during the
proceedings, either or both of the following occur--
(a) the member ceases to have a qualification specified by a Division Schedule for
a Commission Division or enabling legislation for participation in the
proceedings other than because of any of the following reasons--
(i) misconduct or unsatisfactory conduct of the member,
(ii) the mental incapacity of the member,
(iii) the member becoming bankrupt or insolvent,
(b) the member ceases to be a member because of the expiration of the period of
the member's appointment.
(2) An affected member may, despite becoming an affected member, complete or
otherwise continue to deal with any matters in the proceedings concerned.
(3) While completing or otherwise dealing with matters referred to in subclause (2), the
affected member is taken to have and may exercise all the rights and functions of a
member that the affected member had immediately before becoming an affected
member.
12 Leave
(1) The entitlement of a member to annual and other leave is to be as stated in the
instrument of the member's appointment.
(2) A member may be granted leave--
(a) in the case of the President--by the Minister, and
(b) in any other case--by the President.
13 Superannuation and leave--preservation of rights
(1) An eligible member--
(a) may continue to contribute to any superannuation scheme to which the eligible
member was a contributor immediately before becoming an eligible member,
and
(b) is entitled to receive any payment, pension or gratuity accrued or accruing
under the scheme, as if the eligible member had continued to be such a
contributor during service as a member.
(2) Service by the eligible member as a member is taken to be service as an officer in the
eligible member's previous employment for the purposes of any law under which the
member continues to contribute to the scheme or by which an entitlement under the
scheme is conferred.
(3) The eligible member is to be regarded as an officer or employee, and the State is to
be regarded as the employer, for the purposes of the scheme.
(4) This clause ceases to apply to the eligible member if the eligible member becomes a
contributor to another superannuation scheme, but the eligible member is not
prevented from receiving a resignation benefit from the first superannuation scheme.
(5) An eligible member retains any rights to annual leave, extended or long service leave
and sick leave accrued or accruing in the eligible member's previous employment.
(6) An eligible member is not entitled to claim, under both this Act and any other Act,
dual benefits of the same kind for the same period of service.
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Schedule 2 Provisions relating to members of Commission
(7) In this clause--
eligible member means a member who, immediately before holding that office, was
a public servant or an officer or employee of a public authority declared by an Act or
proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under which any
superannuation or retirement benefits are provided and that is established by or under
an Act.
14 Provisions where judicial officer is holding office as member
(1) The appointment of a person who is the holder of a judicial office as a member, or
service by a person who is the holder of a judicial office as a member, does not
affect--
(a) the person's tenure of that judicial office, or
(b) the person's rank, title, status, remuneration or other rights or privileges as the
holder of that judicial office.
(2) The person's service as a member is, for all purposes, taken to be service as the
holder of that judicial office.
(3) This clause is subject to clause 6.
15 Disclosure of pecuniary and other interests
The regulations may make provision for or with respect to--
(a) the disclosure by members of interests (whether pecuniary or otherwise) that
could conflict with the proper performance of the functions of a member in
proceedings, and
(b) the participation of members in proceedings in which there may be a conflict
of interest (including the effect of participation on the validity of decisions
made in the proceedings).
16 Effect of other Acts
(1) The office of a member is a statutory office and the provisions of the Government
Sector Employment Act 2013 relating to the employment of Public Service
employees do not apply to that office.
(2) If, by or under any Act, provision is made--
(a) requiring a person who is the holder of a specified office to devote the whole
of the person's time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties of that
office,
the provision does not operate to disqualify the person from holding that office and
also the office of a non-full-time member or from accepting and retaining any
remuneration payable to the person under this Act as a non-full-time member.
(3) In this clause--
non-full-time member means a member holding office other than on a full-time
basis.
17 Oaths
The Minister may require oaths to be taken by the President and any Deputy
President.
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Personal Injury Commission Bill 2020 [NSW]
Schedule 3 Workers Compensation Division
Schedule 3 Workers Compensation Division
section 13
Part 1 Interpretation
1 Definitions
In this Schedule--
Division function means a function of the Commission allocated to the Division by
this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than a Division
function exercised by a registrar.
the Division means the Workers Compensation Division of the Commission.
Part 2 Composition of Division
2 Division members
The Division is composed of the following members--
(a) the Division Head,
(b) any other members assigned to the Division by or under this Act.
Part 3 Functions of Division
3 Functions allocated to Division
(1) The functions of the Commission in relation to the workers compensation legislation
are allocated to the Division.
Note. Section 5(2) provides that a reference in this Act (however expressed) to the exercise
by the Commission of its functions in relation to enabling legislation includes a reference both
to its functions under the enabling legislation and its functions under this Act or any other
legislation in relation to the enabling legislation.
(2) Without limiting subclause (1), the functions of the Commission in relation to the
workers compensation legislation include the following--
(a) expedited assessments under Part 5 of Chapter 7 of the Workplace Injury
Management and Workers Compensation Act 1998,
(b) the resolution of disputes about work capacity decisions within the meaning of
the Workers Compensation Act 1987,
(c) the assessment of costs under provisions concerning assessments made by
regulations for the purposes of section 347(4) of the Workplace Injury
Management and Workers Compensation Act 1998.
Part 4 Special constitution requirements
4 Constitution generally
Except as provided by this Part or sections 351 and 352 of the Workplace Injury
Management and Workers Compensation Act 1998, the Commission when
exercising its substantive Division functions is to be constituted by--
(a) 1 Division member who is a non-presidential member, or
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Personal Injury Commission Bill 2020 [NSW]
Schedule 3 Workers Compensation Division
(b) the Division Head (but only if the Division Head is a Deputy President).
5 Constitution for costs assessments and appeals against costs assessments
(1) This clause applies to the exercise of--
(a) a substantive Division function in respect of an assessment of costs by the
Commission under provisions for assessments of costs made by regulations
for the purposes of section 347(4) of the Workplace Injury Management and
Workers Compensation Act 1998 (a costs assessment function), and
(b) a substantive Division function in respect of an appeal to the Commission
against an assessment of costs under provisions for appeals made by
regulations for the purposes of section 347(4) of the Workplace Injury
Management and Workers Compensation Act 1998 (a costs assessment
appeal function).
(2) The Commission, when exercising a costs assessment function, is to be constituted
by 1 Division member who is a non-presidential member.
(3) The Commission, when exercising a costs assessment appeal function, is to be
constituted by 1 Division member who is a presidential member.
Part 5 Special practice and procedure
6 Commission to attempt conciliation
(1) The Commission constituted by a non-presidential member is not, in the exercise of
its substantive Division functions, to make an award or otherwise determine a dispute
referred to the Commission for determination without first using the member's best
endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2) No objection may be taken to the making of an award or the determination of a
dispute by the Commission constituted by a non-presidential member on the ground
that the member had previously used the member's best endeavours to bring the
parties to the dispute to a settlement.
7 Evidence of statements made in Commission
In proceedings before a court with respect to a claim for work injury damages (other
than proceedings under section 235A or 235C of the Workplace Injury Management
and Workers Compensation Act 1998 or under the Crimes Act 1900 with respect to
fraud), evidence of a statement made in proceedings before the Commission is not
admissible unless the person who made the statement agrees to the evidence being
admitted.
8 Powers of Commission to require evidence
(1) The Commission may require any person appearing before the Commission in
proceedings allocated to the Division--
(a) to give evidence on oath or affirmation (and may, for that purpose, administer
an oath or affirmation), and
(b) to answer any relevant question put to the person.
(2) A person must not, without reasonable excuse, refuse or fail to comply with a
requirement duly made under this clause.
Maximum penalty--50 penalty units.
(3) A person is not required to answer a question under this clause if the answer to that
question would tend to incriminate the person of an offence.
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Schedule 3 Workers Compensation Division
Part 6 Division functions exercisable by registrar
9 Registrar may exercise expedited assessment functions if directed
(1) Despite Part 4, a registrar or any other member of staff of the Commission may, at
the direction of the President, exercise any of the functions of the Commission
referred to in clause 3(2).
(2) The President may direct a registrar or any other member of staff of the Commission
to refer the exercise of such a function in a particular matter to the Commission and
the registrar or other member of staff must comply with the direction.
(3) A registrar or any other member of staff of the Commission may refer a particular
matter in the exercise of such a function to the Commission if the registrar or member
of staff considers it would be more appropriate for the Commission to deal with the
matter.
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Personal Injury Commission Bill 2020 [NSW]
Schedule 4 Motor Accidents Division
Schedule 4 Motor Accidents Division
section 13
Part 1 Interpretation
1 Definitions
In this Schedule--
Division function means a function of the Commission allocated to the Division by
this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than a Division
function exercised by a registrar.
the Division means the Motor Accidents Division of the Commission.
Part 2 Composition of Division
2 Division members
The Division is composed of the following members--
(a) the Division Head,
(b) any other members assigned to the Division by or under this Act.
Part 3 Functions of Division
3 Functions allocated to Division
The functions of the Commission in relation to the motor accidents legislation are
allocated to the Division.
Note. Section 5(2) provides that a reference in this Act (however expressed) to the exercise
by the Commission of its functions in relation to enabling legislation includes a reference both
to its functions under the enabling legislation and its functions under this Act or any other
legislation in relation to the enabling legislation.
Part 4 Special constitution requirements
4 Constitution generally
Except as provided by this Part, the Commission when exercising its substantive
Division functions is to be constituted by 1 Division member.
5 Exempt claim functions
The Commission, when exercising its substantive Division functions for the
purposes of section 7.34(1)(b) of the Motor Accident Injuries Act 2017 or section
92(1)(b) of the Motor Accidents Compensation Act 1999, is to be constituted by--
(a) the President, or
(b) at the direction of the President, the Division Head.
6 Functions under Motor Accidents (Lifetime Care and Support) Act 2006
The Commission, when exercising its substantive Division functions for the
purposes of Division 2 of Part 3 of the Motor Accidents (Lifetime Care and Support)
Act 2006, is to be constituted by 3 Division members.
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Schedule 4 Motor Accidents Division
Part 5 Special practice and procedure
7 Evidence about assessment conference
(1) In proceedings before a court with respect to a claim, evidence of a statement made
during an assessment conference is not admissible unless the person who made the
statement agrees to the evidence being admitted.
(2) Subclause (1) does not apply in respect of proceedings before a court under--
(a) Division 6.6 of the Motor Accident Injuries Act 2017, or
(b) Part 4.6 of the Motor Accidents Compensation Act 1999.
(3) In this clause--
assessment conference means any conference or other proceeding held with or
before the Commission in connection with an assessment of a claim, and includes
any such proceedings at which the parties (or some of them) participate by telephone,
closed-circuit television or other means.
claim means a claim within the meaning of the Motor Accident Injuries Act 2017 or
the Motor Accidents Compensation Act 1999.
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Personal Injury Commission Bill 2020 [NSW]
Schedule 5 Independent Review Officer
Schedule 5 Independent Review Officer
Part 1 Introduction
1 Definitions
In this Schedule--
claimant means a person who makes or is entitled to make--
(a) a claim within the meaning of the Workplace Injury Management and Workers
Compensation Act 1998, or
(b) a claim within the meaning of the Motor Accident Injuries Act 2017, or
(c) a claim within the meaning of the Motor Accidents Compensation Act 1999.
employer has the same meaning as in the Workplace Injury Management and
Workers Compensation Act 1998.
ILARS means the Independent Legal Assistance and Review Service established by
Part 5 of this Schedule.
ILARS guidelines--see clause 10.
insurer means a licensed insurer under any of the enabling legislation.
Nominal Defendant means the Nominal Defendant within the meaning of the Motor
Accident Injuries Act 2017 or Motor Accidents Compensation Act 1999.
Nominal Insurer means the Nominal Insurer within the meaning of the Workers
Compensation Act 1987.
Part 2 Administrative arrangements
2 Appointment of Independent Review Officer
(1) The Governor may appoint an Independent Review Officer.
(2) The Independent Review Officer holds office for such term not exceeding 5 years as
may be specified in the instrument of appointment, but is eligible (if otherwise
qualified) for reappointment.
(3) The office of Independent Review Officer is a full-time office and the holder of the
office is required to hold it on that basis, except to the extent permitted by the
Governor.
(4) The Independent Review Officer is entitled to be paid--
(a) remuneration in accordance with the Statutory and Other Offices
Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to
time determine.
(5) The office of Independent Review Officer is a statutory office and the provisions of
the Government Sector Employment Act 2013 relating to the employment of Public
Service employees do not apply to that office.
3 Vacancy in office of Independent Review Officer
(1) The office of Independent Review Officer becomes vacant if the holder--
(a) dies, or
(b) completes a term of office and is not reappointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
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Schedule 5 Independent Review Officer
(d) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes
an assignment of his or her remuneration for their benefit, or
(e) becomes a mentally incapacitated person, or
(f) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable, or
(g) is removed from office under this clause.
(2) The Governor may remove the Independent Review Officer from office--
(a) for misbehaviour, or
(b) for incapacity, or
(c) if the Independent Review Officer is absent from duty for a period in excess
of his or her leave entitlement as approved by the Governor unless the absence
is caused by illness or other unavoidable cause.
(3) The Independent Review Officer cannot be removed from office under Part 6 of the
Government Sector Employment Act 2013.
(4) If the office of Independent Review Officer becomes vacant, a person is, subject to
this Act, to be appointed to fill the vacancy.
4 Appointment of acting Independent Review Officer
(1) The Minister may, from time to time, appoint a person to act in the office of the
Independent Review Officer during--
(a) the illness or absence of the Independent Review Officer, or
(b) a vacancy in the office of the Independent Review Officer.
(2) The person, while so acting, has all the functions of the Independent Review Officer
and is taken to be the Independent Review Officer.
(3) The Minister may, at any time, remove a person from office as acting Independent
Review Officer.
(4) An acting Independent Review Officer is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may from time to
time determine.
5 Staff
(1) Persons may be employed in the Public Service under the Government Sector
Employment Act 2013 to enable the Independent Review Officer to exercise the
Officer's functions.
Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons
so employed (or whose services the Independent Review Officer makes use of) may be
referred to as officers or employees, or members of staff, of that Officer. Section 47A of the
Constitution Act 1902 precludes that Officer from employing staff.
(2) The persons so employed are to be employed in a separate Public Service agency and
may (together with the persons referred to in subclause (3)) be referred to as members
of staff of the Independent Review Officer.
(3) The Independent Review Officer may also--
(a) arrange for the use of the services of any staff or facilities of a Public Service
agency or a local or public authority, or
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Schedule 5 Independent Review Officer
(b) engage persons as consultants to the Independent Review Officer or to
perform services for the Officer.
Part 3 Functions
6 Functions of Independent Review Officer
The Independent Review Officer has the following functions--
(a) to deal with complaints made to the Independent Review Officer under this
Schedule,
(b) to inquire into and report to the Minister on any matters arising in connection
with the operation of this Act or the enabling legislation as the Independent
Review Officer considers appropriate or as may be referred to the Independent
Review Officer for inquiry and report by the Minister,
(c) to encourage the establishment by insurers and employers of complaint
resolution processes for complaints arising under the enabling legislation,
(d) to manage and administer ILARS (including by issuing ILARS guidelines),
(e) any other functions as may be conferred on the Independent Review Officer
by or under this Act or any other Act (including the enabling legislation).
7 Requirement to provide information
(1) The Independent Review Officer may require an insurer to provide specified
information that the Independent Review Officer reasonably requires for the
purposes of the exercise of any function of the Independent Review Officer.
(2) It is a condition of an insurer's licence that the insurer comply with a request for the
provision of information under this clause.
(3) The Independent Review Officer can decline to deal with a complaint if the claimant
who makes the complaint fails to comply with a request to provide information to the
Independent Review Officer.
(4) The Authority, the Nominal Insurer and the Nominal Defendant must provide the
Independent Review Officer with such information as the Independent Review
Officer reasonably requires and requests for the purposes of the exercise of any
function of the Independent Review Officer.
(5) The Independent Review Officer must provide the Authority with such information
as the Authority reasonably requires and requests for the purposes of the exercise of
any function of the Authority.
Part 4 Complaints
8 Complaints about insurers
(1) A claimant may complain to the Independent Review Officer about any act or
omission (including any decision or failure to decide) of an insurer that affects the
entitlements, rights or obligations of the claimant under the enabling legislation.
(2) The Independent Review Officer deals with a complaint by investigating the
complaint and reporting to the claimant and the insurer on the findings of the
investigation, including the reasons for those findings.
(3) The Independent Review Officer's findings can include non-binding
recommendations for specified action to be taken by the insurer or the claimant.
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Schedule 5 Independent Review Officer
(4) The Independent Review Officer is to deal with a complaint within a period of 30
days after the complaint is made unless the Independent Review Officer notifies the
claimant and the insurer within that period that a specified longer period will be
required to deal with the complaint.
(5) The Independent Review Officer may decline to deal with a complaint on the basis
that it is frivolous or vexatious or should not be dealt with for such other reason as
the Independent Review Officer considers relevant.
(6) The regulations may make provision for or with respect to requiring the Independent
Review Officer to notify the Authority of specified kinds of contraventions of this
Act or the enabling legislation of which the Officer becomes aware.
(7) Without limiting subsection (6), the regulations may--
(a) provide for the way in which notification is to be given, and
(b) provide for when the notification is to be given, and
(c) provide for the information required to be notified, and
(d) provide for any further requirements relating to the notification (for example,
a requirement to provide further information or answer questions).
Part 5 Independent Legal Assistance and Review Service
9 Independent Legal Assistance and Review Service
(1) There is to be an Independent Legal Assistance and Review Service managed and
administered by the Independent Review Officer.
(2) The purpose of ILARS is to provide funding for legal and associated costs for
workers under the Workers Compensation Acts seeking advice regarding decisions
of insurers for those Acts and to provide assistance in finding solutions for disputes
between workers and insurers.
10 Guidelines concerning ILARS
(1) The Independent Review Officer may issue guidelines (ILARS guidelines) for or
with respect to the following--
(a) the approval of lawyers to be granted funding under ILARS (including
qualifications and experience for approval),
(b) the allocation and amount of funding for legal and associated costs under
ILARS.
(2) The Independent Review Officer may (wholly or partly) amend, revoke or replace
ILARS guidelines.
(3) ILARS guidelines may adopt the provisions of other publications, whether with or
without modification or addition and whether in force at a particular time or from
time to time.
11 Publication and Parliamentary scrutiny of ILARS guidelines
(1) ILARS guidelines are to be published on the NSW legislation website and take effect
on the day of that publication or, if a later day is specified in the guidelines for that
purpose, on the day so specified.
(2) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory
rules) of the Interpretation Act 1987 apply to ILARS guidelines in the same way as
those sections apply to statutory rules.
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Schedule 5 Independent Review Officer
12 Review of ILARS by supervisory committee of Legislative Council
(1) The committee of the Legislative Council designated for the purposes of section 27
of the State Insurance and Care Governance Act 2015 is to enquire into and report
on the whether ILARS should be extended to claimants for statutory benefits under
the Motor Accident Injuries Act 2017.
Note. Section 27 of the State Insurance and Care Governance Act 2015 provides for the
Legislative Council to designate a committee of the Council to supervise the operation of the
insurance and compensation schemes established under the workers compensation and
motor accidents legislation. The Standing Committee on Law and Justice was the designated
committee at the time of the enactment of this Act.
(2) The enquiry and report are to be undertaken by the designated committee as part of
its next review of the operation of the Motor Accident Injuries Act 2017 following
the commencement of this Schedule.
Part 6 General
13 Annual report
(1) As soon as practicable after 30 June (but before 31 December) in each year, the
Independent Review Officer is to prepare and forward to the Minister a report on his
or her activities for the 12 months ending on 30 June in that year.
(2) The report is to be tabled in Parliament and for that purpose the Minister is to lay the
report or cause it to be laid before both Houses of Parliament as soon as practicable
after receiving the report.
(3) The Minister is to give the Authority and insurers an opportunity to comment on the
report before it is tabled in Parliament and may include with the report when it is
tabled a statement as to the comments of the Authority and insurers.
(4) The report is to include the following information--
(a) the number and type of complaints made and dealt with under this Schedule
during the year,
(b) the sources of those complaints,
(c) the number and type of complaints that were made during the year but not dealt
with,
(d) the operation of ILARS,
(e) any other information as the Independent Review Officer considers
appropriate to be included or as the Minister directs to be included.
(5) Matters included in a report must not identify individual claimants.
14 Delegation of functions
The Independent Review Officer may delegate the exercise of any function of the
Independent Review Officer (other than this power of delegation) to--
(a) any member of staff of the Independent Review Officer, or
(b) any person, or any class of persons, authorised for the purposes of this clause
by the regulations.
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Personal Injury Commission Bill 2020 [NSW]
Schedule 6 Amendment of other legislation
Schedule 6 Amendment of other legislation
6.1 Defamation Act 2005 No 77
Schedule 2 Additional kinds of public documents
Omit clause 3. Insert instead--
3 Documents relating to Personal Injury Commission
(1) Without limiting section 28(4)(a)-(f), a document that consists of--
(a) a report made by a member of the Personal Injury Commission of a
decision or determination of the member in respect of proceedings
under enabling legislation, or
(b) a report made by a merit reviewer, medical assessor or registrar of a
decision or determination of the reviewer, assessor or registrar in
respect of any proceedings under enabling legislation.
(2) Words and expressions used in this clause that are defined in the Personal
Injury Commission Act 2020 have the same meanings as in that Act.
6.2 District Court Act 1973 No 9
Section 44 Actions
Insert after section 44(1)(d2)--
(d3) without limiting paragraphs (d) and (d1), any substituted proceedings
within the meaning of Division 3.2 of the Personal Injury Commission
Act 2020 irrespective of the amount claimed,
6.3 Electronic Transactions Regulation 2017
[1] Clause 8 Definition of "court" for purposes of Schedule 1 to the Act
Omit "Workers Compensation Commission" from clause 8(1).
Insert instead "Personal Injury Commission".
[2] Clause 8(2)
Omit the subclause.
6.4 Government Information (Public Access) Regulation 2018
Schedule 3 Agencies declared to be part of other agencies
Omit the matter relating to the Workers Compensation Commission.
Insert in appropriate order of agency--
Personal Injury Commission Department of Customer Service
6.5 Government Sector Employment Act 2013 No 40
Schedule 1 Public Service agencies
Insert in alphabetical order in Part 3--
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Personal Injury Commission Bill 2020 [NSW]
Schedule 6 Amendment of other legislation
Office of the Independent Review Officer *Independent Review Officer
6.6 Motor Accident Injuries Act 2017 No 10
[1] Section 1.4 Definitions
Omit the definitions of claims assessor, Dispute Resolution Service and Principal Claims
Assessor from section 1.4(1).
[2] Section 1.4(1)
Insert in alphabetical order--
Commission means the Personal Injury Commission of New South Wales
established by the Personal Injury Commission Act 2020.
Commission rules has the same meaning as in the Personal Injury
Commission Act 2020.
President means the President of the Commission.
[3] Section 1.4(1), definitions of "medical assessor" and "merit reviewer"
Omit the definitions. Insert instead--
medical assessor means a person appointed under the Personal Injury
Commission Act 2020 as a medical assessor for the purposes of this Act.
merit reviewer means a person appointed under the Personal Injury
Commission Act 2020 as a merit reviewer for the purposes of this Act.
[4] Section 1.6 Meaning of "minor injury"
Omit section 1.6(5). Insert instead--
(5) The Motor Accident Guidelines may make provision for or with respect to the
assessment of whether an injury is a minor injury for the purposes of this Act.
(6) Subsection (5) does not enable the Motor Accident Guidelines to make
provision for or with respect to the resolution of disputes by the Commission
or medical assessor.
Note. The rules of the Commission make provision for these matters.
[5] Section 2.31 Rejection of claim for failure to make due inquiry and search to
establish identity of vehicle
Omit "Dispute Resolution Service" from section 2.31(1)(b).
Insert instead "Commission".
[6] Section 3.3 Determination of relevant insurer
Omit "Dispute Resolution Service" from section 3.3(2).
Insert instead "Commission".
[7] Section 3.20 Refund of weekly payments paid after return to employment
Omit "Dispute Resolution Service" wherever occurring in section 3.20(1)-(4) and (6).
Insert instead "Commission".
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Schedule 6 Amendment of other legislation
[8] Section 3.21 Weekly statutory benefits to persons residing outside Australia
Omit "Dispute Resolution Service" from section 3.21(2)(a).
Insert instead "Commission".
[9] Section 3.38 Reduction of weekly statutory benefits after 6 months for contributory
negligence
Omit "Dispute Resolution Service" wherever occurring in section 3.38(2)(a) and (3).
Insert instead "Commission".
[10] Section 3.44 Statutory benefits determinations relating to fault etc not binding in
relation to common law claims
Omit "Dispute Resolution Service" from section 3.44(1).
Insert instead "Commission".
[11] Section 3.45 Special provisions relating to payment of statutory benefits for
treatment and care by Lifetime Care and Support Authority as relevant insurer
Omit "Dispute Resolution Service" from section 3.45(5).
Insert instead "Commission".
[12] Section 4.1 Damages in respect of motor accidents
Omit "a claims assessor" from section 4.1(2)(b). Insert instead "the Commission".
[13] Section 4.2 General regulation of award of damages
Omit "claims assessor" from section 4.2(2). Insert instead "Commission".
[14] Section 4.7 Future economic loss--claimant's prospects and adjustments
Omit "claims assessor" wherever occurring in section 4.7(1) and (3).
Insert instead "Commission".
[15] Section 4.8 Assessment of impairment of earning capacity if dispute over degree of
impairment
Omit "claims assessor" and "Dispute Resolution Service" wherever occurring in the note
to the section.
Insert instead "the Commission" and "Commission", respectively.
[16] Section 4.12 Assessment of permanent impairment required if dispute over
impairment threshold
Omit "claims assessor" and "Dispute Resolution Service" wherever occurring in the note
to section 4.12(1).
Insert instead "the Commission" and "Commission", respectively.
[17] Section 4.14 Publication of information to assist determination of non-economic loss
Omit "claims assessor" from section 4.14(2). Insert instead "the Commission".
[18] Section 4.16 Payment of interest
Omit "claims assessor" wherever occurring in section 4.16(2) and (3)(a).
Insert instead "Commission".
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[19] Section 4.17 Contributory negligence--generally
Omit "claims assessor" wherever occurring in section 4.17(2)(a) and (3).
Insert instead "Commission".
[20] Section 6.6
Omit the section. Insert instead--
6.6 Directions for compliance with duties
(1) The Commission when undertaking a claims assessment, or a merit reviewer
when undertaking a merit review under Part 7, may give directions to a party
to a claim for the purpose of ensuring compliance by the party with a duty
arising under this Division.
(2) If a claimant fails to comply with such a direction without reasonable excuse,
the giver of the direction may direct the insurer to suspend weekly payments
of statutory benefits to the claimant under Part 3 while the failure continues.
(3) If an insurer fails to comply with such a direction without reasonable excuse,
the giver of the direction may direct the insurer not to discontinue or reduce
weekly payments of statutory benefits to the claimant under Part 3 while the
failure continues.
(4) The principal registrar of the Commission is to inform the Authority of the
following if an insurer fails to comply with a direction given under this
section--
(a) the name of the insurer,
(b) the name of the claimant,
(c) particulars about the insurer's failure.
[21] Section 6.7 Reports to Authority on compliance
Omit "Dispute Resolution Service". Insert instead "Commission".
[22] Section 6.9 Compliance with verification requirements--claim for statutory benefits
Omit "Dispute Resolution Service" from section 6.9(b). Insert instead "Commission".
[23] Section 6.10 Compliance with verification requirements--claim for damages
Omit "Dispute Resolution Service" wherever occurring in section 6.10(1).
Insert instead "Commission".
[24] Section 6.14 Time for making of claims for damages
Omit "Dispute Resolution Service" from section 6.14(5)(b). Insert instead "Commission".
[25] Section 6.15 How notice of claims given
Omit "Dispute Resolution Service" from section 6.15(5)(b). Insert instead "Commission".
[26] Section 6.21 Costs penalty for unreasonable denial of liability
Omit "claims assessor" wherever occurring in section 6.21(1).
Insert instead "Commission".
[27] Section 6.22 Duty of insurer to make offer of settlement on claim for damages
Omit "Dispute Resolution Service" from the note to section 6.22(5).
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Insert instead "Commission".
[28] Section 6.23 Restrictions on settlement of claim for damages
Omit "Dispute Resolution Service" wherever occurring in section 6.23(2)(b) and (3).
Insert instead "Commission".
[29] Section 6.26 Consequences of failure to provide relevant particulars of claim for
damages
Omit "Authority" from section 6.26(4)(a). Insert instead "Commission".
[30] Section 6.26(5)
Omit the subsection.
[31] Section 6.26(6) and (7)
Omit "Dispute Resolution Service" wherever occurring. Insert instead "Commission".
[32] Section 6.27 Medical and other examination of claimant
Omit "Dispute Resolution Service" from section 6.27(3). Insert instead "Commission".
[33] Section 6.31 Claims assessment or exemption pre-condition for commencement of
court proceedings
Omit section 6.31(1). Insert instead--
(1) Subject to Division 3.2 of the Personal Injury Commission Act 2020, a
claimant is not entitled to commence court proceedings against another person
in respect of a claim unless--
(a) the Commission has issued a certificate in respect of the claim under
section 7.34 (Claims exempt from assessment), or
(b) the Commission has issued a certificate in respect of the claim under
section 7.36 (Assessment of claims).
[34] Section 6.32 Time limitations on commencement of court proceedings
Omit "Dispute Resolution Service" from section 6.32(2). Insert instead "Commission".
[35] Section 6.34 Matter to be remitted for further claims assessment where significant
new evidence produced in court proceedings
Omit "a claims assessor" and "the claims assessor" wherever occurring.
Insert instead "the Commission".
[36] Section 6.38, heading
Omit "Dispute Resolution Service". Insert instead "Commission".
[37] Section 6.38(1)(b)
Omit "a claims assessor". Insert instead "the Commission".
[38] Section 7.1 Definitions
Omit the definitions of claims assessor, decision-maker, medical assessor and merit
reviewer.
Insert in alphabetical order--
decision-maker means a medical assessor or merit reviewer.
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Schedule 6 Amendment of other legislation
[39] Section 7.1(2) and (3)
Insert at the end of section 7.1--
(2) A function conferred by a provision of this Act on a decision-maker in relation
to any matter is to be exercised in accordance with the Commission rules by a
decision-maker designated by the President except if it is--
(a) a dispute about the assessment of a claim under Division 7.6, or
(b) a merit review matter, or
(c) a medical assessment matter, or
(d) a miscellaneous claims assessment matter.
(3) A function conferred on the Commission by a provision of this Act in respect
of any matter is to be exercised in accordance with the Commission rules.
[40] Division 7.2 Dispute Resolution Service
Omit the Division.
[41] Section 7.10 Definitions
Omit the definition of proper officer of the Authority.
[42] Section 7.12 Application for merit review
Omit "Dispute Resolution Service" wherever occurring in section 7.12(1) and (2).
Insert instead "President".
[43] Section 7.12(1)
Omit "Motor Accident Guidelines". Insert instead "Commission rules".
[44] Section 7.13 Determination of merit review application
Omit section 7.13(5).
[45] Section 7.15 Review of merit review decision by review panel
Omit "proper officer of the Authority" wherever occurring in section 7.15(1) and (3).
Insert instead "President".
[46] Section 7.15(3)
Omit "if the proper officer". Insert instead "if the President".
[47] Section 7.15(6)
Omit the subsection. Insert instead--
(6) An application under this section must be made within 28 days after the parties
to the merit review were issued with a certificate referred to in section 7.13(4)
as to the merit reviewer's determination.
[48] Section 7.16 Regulations
Omit "or a merit review" from section 7.16(b).
[49] Section 7.17 Definitions
Omit "a claims assessor" from paragraph (b) of the definition of medical dispute.
Insert instead "the Commission".
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Schedule 6 Amendment of other legislation
[50] Section 7.20 Medical assessment procedures
Omit section 7.20(1). Insert instead--
(1) A medical dispute about a claim may be referred to the President for
assessment under this Division by--
(a) either party to the dispute, or
(b) a court or the Commission, or
(c) a merit reviewer.
[51] Section 7.20(2) and (3)
Omit "Dispute Resolution Service" wherever occurring.
Insert instead "President".
[52] Section 7.24 Further medical assessment after initial medical assessment
Omit "a claims assessor" from section 7.24(1). Insert instead "the Commission".
[53] Section 7.24(4) and (5)
Omit "proper officer of the Authority" wherever occurring. Insert instead "President".
[54] Section 7.24(5)
Omit "if the proper officer". Insert instead "if the President".
[55] Section 7.26 Review of medical assessment by review panel
Omit section 7.26(1). Insert instead--
(1) A claimant or an insurer may apply to the President to refer a medical
assessment under this Division by a single medical assessor to a review panel
for review.
[56] Section 7.26(5) and (5A)
Omit section 7.26(5). Insert instead--
(5) The President is to arrange for the medical assessment to be referred to a
review panel, but only if the President is satisfied that there is reasonable cause
to suspect that the medical assessment was incorrect in a material respect
having regard to the particulars set out in the application.
(5A) The panel is to be constituted by 3 persons chosen by the President as
follows--
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Motor
Accidents Division of the Commission.
[57] Section 7.26(6A)
Insert after section 7.26(6)--
(6A) To avoid doubt, any medical re-examination of the claimant for the purposes
of the review need not be conducted by all of the members of the panel if the
members agree for it to be conducted by only some of the members.
[58] Section 7.26(10)
Omit the subsection. Insert instead--
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Personal Injury Commission Bill 2020 [NSW]
Schedule 6 Amendment of other legislation
(10) An application under this section must be made within 28 days after the parties
to the medical dispute were issued with the original certificate for the medical
assessment for which the review is sought.
[59] Section 7.27 Non-binding opinion of medical assessor
Omit "Dispute Resolution Service" wherever occurring in section 7.27(1) and (2).
Insert instead "President".
[60] Section 7.27(1) and (3)
Omit "claims assessor" wherever occurring. Insert instead "the Commission".
[61] Section 7.29 Application of Motor Accident Guidelines
Omit the section.
[62] Section 7.32 Reference of claim
Omit section 7.32(1) and (2). Insert instead--
(1) A claim for damages may be referred to the Commission by the claimant or
the insurer, or both, for assessment under this Division.
[63] Section 7.33 Time limits for referring claims and making assessment
Omit "Dispute Resolution Service and a claims assessor" and "Motor Accident
Guidelines".
Insert instead "Commission and the Commission" and "Commission rules", respectively.
[64] Section 7.34 Claims exempt from assessment
Omit section 7.34(1)(b). Insert instead--
(b) the Commission has made a preliminary assessment of the claim and
has determined (with the approval of the President) that the claim is not
suitable for assessment under this Division.
[65] Section 7.34(2)
Omit "Principal Claims Assessor". Insert instead "President".
[66] Section 7.35 Arrangements for assessment
Omit the section.
[67] Section 7.36 Assessment of claims
Omit "claims assessor" wherever occurring in section 7.36(1), (2), (4) and (5).
Insert instead "Commission".
[68] Section 7.36(1)
Omit "the assessor". Insert instead "the Commission".
[69] Section 7.36(5)
Omit "assessor's". Insert instead "Commission's".
[70] Section 7.36(6)
Omit the subsection.
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[71] Section 7.37, heading
Omit "Claims assessor". Insert instead "Commission".
[72] Section 7.37(1) and (3)
Omit "a claims assessor" wherever occurring. Insert instead "the Commission".
[73] Section 7.39 Motor Accident Guidelines
Omit the section.
[74] Section 7.42 Assessment of miscellaneous disputes in connection with claims
Omit "Dispute Resolution Service" from section 7.42(1). Insert instead "Commission".
[75] Division 7.6, Subdivision 4 Claims assessors
Omit the Subdivision.
[76] Section 7.46
Insert before section 7.47--
7.46 Compliance with Commission legislation is condition of insurer's licence
It is a condition of an insurer's licence under this Act that the insurer comply
with relevant provisions of--
(a) the Personal Injury Commission Act 2020 and the regulations under that
Act, and
(b) the Commission rules.
[77] Section 7.47 Persons under legal incapacity
Omit "Dispute Resolution Service" and "Motor Accident Guidelines" from section 7.47(1).
Insert instead "Commission" and "Commission rules", respectively.
[78] Section 7.47(2), definition of "appointed representative"
Omit "a claims assessor". Insert instead "the Commission".
[79] Section 7.48 Effect of decisions under this Part
Insert after section 7.48(4)--
(5) In this section--
decision-maker means--
(a) the Commission, or
(b) a merit reviewer, or
(c) a medical assessor.
[80] Section 7.49 Advisory service
Insert "or the Personal Injury Commission Act 2020" after "this Part".
[81] Section 7.50 Publication of decisions under this Part
Omit the section.
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Schedule 6 Amendment of other legislation
[82] Section 8.3 Regulations fixing maximum costs etc recoverable by Australian legal
practitioners
Omit "Dispute Resolution Service" from section 8.3(4). Insert instead "Commission".
[83] Section 8.4 Maximum fees recoverable by health practitioners for medico-legal
services
Omit "Dispute Resolution Service proceedings" from section 8.4(1)(c).
Insert instead "proceedings in the Commission or before a medical assessor or merit
reviewer".
[84] Section 8.9 Maximum fees payable by insurers for treatment and care not provided
at hospitals or provided at private hospitals
Omit "Dispute Resolution Service" from section 8.9(3). Insert instead "Commission".
[85] Section 8.10 Recovery of costs and expenses in relation to claims for statutory
benefits
Omit "Dispute Resolution Service" wherever occurring in section 8.10(3) and (4).
Insert instead "Commission".
[86] Section 10.1 Functions of the Authority
Omit "claims assessors" from section 10.1(1)(a). Insert instead "the Commission".
[87] Section 10.1(1)(e)
Omit the paragraph. Insert instead--
(e) to monitor compliance by insurers with--
(i) this Act and relevant Motor Accident Guidelines, and
(ii) the Personal Injury Commission Act 2020 and the statutory rules
under that Act,
[88] Section 10.1(1)(h)
Omit the paragraph.
[89] Section 10.1(1)(i)
Insert "or the Personal Injury Commission Act 2020" after "Part 7".
[90] Section 10.12 Motor Accidents Operational Fund (the SIRA Fund)
Omit section 10.12(3)(b). Insert instead--
(b) the costs associated with the establishment and operation of the Motor
Accidents Division of the Commission arising from this Act,
including--
(i) the expenditure incurred by the Commission in providing merit
reviews and reviews of merit reviews under this Act, and
(ii) the expenditure incurred by the Commission in providing
medical assessments and reviews of medical assessments under
this Act,
(b1) the remuneration of the Independent Review Officer (within the
meaning of the Personal Injury Commission Act 2020) and staff of the
Independent Review Officer and costs incurred in connection with the
exercise of the functions of the Independent Review Officer arising
under this Act,
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Schedule 6 Amendment of other legislation
[91] Schedule 2, heading
Omit the heading. Insert instead--
Schedule 2 Matters for the purposes of Part 7
[92] Schedule 2
Omit the note at the beginning of the Schedule. Insert instead--
Note. This Schedule sets out merit review matters, medical assessment matters and
miscellaneous claims assessment matters for the purposes of Part 7. The assessment
of claims is dealt with by Division 7.6.
See section 7.1(2) for the exercise of other miscellaneous functions not included in this
Schedule.
[93] Schedule 3 Provisions relating to Principal Claims Assessor
Omit the Schedule.
6.7 Motor Accidents Compensation Act 1999 No 41
[1] Section 3 Definitions
Omit the definitions of claims assessor, Motor Accidents Claims Assessment Guidelines
and Principal Claims Assessor from section 3.
Insert in alphabetical order--
Commission means the Personal Injury Commission of New South Wales
established by the Personal Injury Commission Act 2020.
Commission rules has the same meaning as in the Personal Injury
Commission Act 2020.
President means the President of the Commission.
[2] Section 34A Rejection of claim for failure to make due inquiry and search to establish
identity of vehicle
Omit "a claims assessor" from section 34A(1)(b). Insert instead "the Commission".
[3] Section 44 Medical Guidelines of Authority
Omit section 44(1)(d).
[4] Section 56 Maximum fees payable by insurers for medical treatment and other
treatment or services not provided at hospitals or for treatment at private hospitals
Omit "a claims assessor" from section 56(5)(c). Insert instead "the Commission".
[5] Section 56(6)
Omit the subsection.
[6] Section 57 Definitions
Omit the definitions of medical assessor and medical assessors review panel.
Insert instead--
medical assessor means a person appointed under the Personal Injury
Commission Act 2020 as a medical assessor for the purposes of this Act.
[7] Section 57A Motor Accidents Medical Assessment Service
Omit the section.
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Schedule 6 Amendment of other legislation
[8] Section 58 Application
Omit "a claims assessor" from section 58(2). Insert instead "the Commission".
[9] Section 59 Appointment of medical assessors
Omit the section.
[10] Section 59A Protection of medical assessors
Omit the section.
[11] Section 60
Omit the section. Insert instead--
60 Medical assessment procedures
(1) A medical dispute may be referred to the President for assessment under this
Part by either party to the dispute or by a court or the Commission.
(2) The President is to arrange for the dispute to be referred to one or more
medical assessors.
[12] Section 61 Status of medical assessments
Omit "a claims assessor" from section 61(2). Insert instead "the Commission".
[13] Section 61(10)(b)
Omit "Authority". Insert instead "President".
[14] Section 62 Referral of matter for further medical assessment
Omit "claims assessor" from section 62(1)(b). Insert instead "the President".
[15] Section 62(1B)
Omit the subsection. Insert instead--
(1B) Referral of a matter under this section is to be by referral to the President.
[16] Section 63 Review of medical assessment by review panel
Omit section 63(1). Insert instead--
(1) A party to a medical dispute may apply to the President to refer a medical
assessment under this Part by a single medical assessor to a review panel for
review.
[17] Section 63(2B) and (3)
Omit section 63(3). Insert instead--
(2B) The President is to arrange for any such application to be referred to a review
panel, but only if the President is satisfied that there is reasonable cause to
suspect that the medical assessment was incorrect in a material respect having
regard to the particulars set out in the application.
(3) The review panel is to be constituted by 3 persons chosen by the President as
follows--
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Motor
Accidents Division of the Commission.
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Schedule 6 Amendment of other legislation
[18] Section 63(3B)
Insert after section 63(3A)--
(3B) To avoid doubt, any medical re-examination of the claimant for the purposes
of the review need not be conducted by all of the members of the panel if the
members agree for it to be conducted by only some of the members.
[19] Section 63(7)
Omit the subsection. Insert instead--
(7) An application under this section must be made within 28 days after the parties
to the medical dispute were issued with the original certificate for the medical
assessment for which the review is sought.
[20] Section 65 Authority monitoring and oversight
Omit the section.
[21] Section 69 Claims Assessment Guidelines of Authority
Omit the section.
[22] Section 70 Reporting of motor accident to police
Omit "a claims assessor" from section 70(3)(b). Insert instead "the Commission".
[23] Section 73 Late making of claims
Omit "a claims assessor" wherever occurring in section 73(3)(b) and the note to the section.
Insert instead "the Commission".
[24] Section 75 Other approved forms
Insert after section 75(2)--
(3) This section does not authorise the Authority to approve forms in connection
with proceedings before the Commission or for use in medical assessments by
medical assessors.
[25] Section 76 Rejecting claims for failure to comply with section 74
Omit "a claims assessor" from section 76(1)(b). Insert instead "the Commission".
[26] Section 82 Duty of insurer to make offer of settlement
Omit "a claims assessor" from the note to section 82(6). Insert instead "the Commission".
[27] Section 83 Duty of insurer to make hospital, medical and other payments
Omit "a claims assessor" from the note to section 83(2). Insert instead "the Commission".
[28] Section 84A Duty of insurer to make interim payments in case of financial hardship
Omit "a claims assessor" from the note to section 84A(1). Insert instead "the Commission".
[29] Section 85B Consequences of failure to provide relevant particulars of claim
Omit "Authority" from section 85B(4)(a). Insert instead "Commission".
[30] Section 85B(5)
Omit the subsection.
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Schedule 6 Amendment of other legislation
[31] Section 85B(6)
Omit "claims assessor". Insert instead "Commission".
[32] Section 85B(7)
Omit "Principal Claims Assessor". Insert instead "Commission".
[33] Section 86 Medical and other examination of claimant
Omit "Authority" from section 86(3). Insert instead "President".
[34] Section 86(4)(a)
Omit "Authority". Insert instead "Commission".
[35] Section 89A Parties required to participate in settlement conference
Omit "Authority" from section 89A(2). Insert instead "Commission".
[36] Section 89A(3)
Omit "a claims assessor". Insert instead "the Commission".
[37] Section 89B Parties to exchange documents before settlement conference
Omit "a claims assessor" and "the claims assessor" from section 89B(2).
Insert instead "the Commission".
[38] Section 89C Settlement offers to be made if claim not settled
Omit "Authority" from section 89C(2). Insert instead "Commission".
[39] Section 89C(4)
Omit "a claims assessor" from section 89C(4). Insert instead "the Commission".
[40] Section 89D Compliance with Division
Omit "A claims assessor" and "the claims assessor" from section 89D(1).
Insert instead "The Commission" and "the Commission", respectively.
[41] Section 90 Reference of claim
Omit "Authority". Insert instead "Commission".
[42] Section 92 Claims exempt from assessment
Omit section 92(1)(b). Insert instead--
(b) the Commission has made a preliminary assessment of the claim and
has determined (with the approval of the President) that the claim is not
suitable for assessment under this Part.
[43] Section 92(2)
Omit "Principal Claims Assessor". Insert instead "President".
[44] Section 93 Arrangements for assessment
Omit the section.
[45] Section 94 Assessment of claims
Omit "claims assessor" wherever occurring in section 94(1), (2), (4) and (5).
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Schedule 6 Amendment of other legislation
Insert instead "Commission".
[46] Section 94(1)
Omit "the assessor". Insert instead "the Commission".
[47] Section 94(5)
Omit "assessor's". Insert instead "Commission's".
[48] Section 94(6)
Omit the subsection.
[49] Section 94A, heading
Omit "Claims assessor". Insert instead "Commission".
[50] Section 94A(1) and (3)
Omit "a claims assessor" wherever occurring. Insert instead "the Commission".
[51] Section 96 Special assessments of certain disputes in connection with claims
Omit "Authority" from section 96(2). Insert instead "Commission".
[52] Section 96(3)
Omit "a claims assessor" and "the claims assessor". Insert instead "the Commission".
[53] Section 97 Regulations
Omit the section.
[54] Part 4.4, Division 3 Provisions relating to claims assessors
Omit the Division.
[55] Section 108 Claims assessment or exemption pre-condition for commencement of
court proceedings
Omit section 108(1). Insert instead--
(1) Subject to Division 3.2 of the Personal Injury Commission Act 2020, a
claimant is not entitled to commence court proceedings against another person
in respect of a claim unless--
(a) a certificate has been issued in respect of the claim under section 92
(Claims exempt from assessment), or
(b) a certificate has been issued in respect of the claim under section 94
(Assessment of claims).
[56] Section 109 Time limitations on commencement of court proceedings
Omit "Authority" from section 109(2). Insert instead "Commission".
[57] Section 111 Matter to be remitted for further claims assessment where significant
new evidence produced in court proceedings
Omit "a claims assessor" and "the claims assessor" wherever occurring.
Insert instead "the Commission".
[58] Section 115, heading
Omit "claims assessor". Insert instead "Commission".
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Schedule 6 Amendment of other legislation
[59] Section 115(1)(b)
Omit "a claims assessor". Insert instead "the Commission".
[60] Section 115A
Insert before section 116--
115A Compliance with Commission legislation is condition of insurer's licence
It is a condition of a licence granted under Part 7.1 that the insurer comply with
relevant provisions of--
(a) the Personal Injury Commission Act 2020 and the regulations under that
Act, and
(b) the Commission rules.
[61] Section 122 Damages in respect of motor accidents
Omit "a claims assessor" from section 122(3). Insert instead "the Commission".
[62] Section 135 Publication of information to assist determination of non-economic loss
Omit the section.
[63] Section 150 Maximum fees recoverable by medical practitioners for medico-legal
services
Omit "a claims assessor" wherever occurring in section 150(1).
Insert instead "the Commission".
[64] Section 151 Costs where claims assessment made
Omit "claims assessor" wherever occurring in section 151(3). Insert instead "Commission".
[65] Section 206 Authority's functions under this Act
Insert "and the Commission" after "insurers" in section 206(2)(a).
[66] Section 206(2)(e)
Insert "and the Personal Injury Commission Act 2020" after "this Act".
[67] Section 212 Motor Accidents Operational Fund
Omit section 212(3)(c). Insert instead--
(c) the costs associated with the establishment and operation of the Motor
Accidents Division of the Commission arising from this Act (including
the expenditure incurred by the Commission in providing medical
assessments and reviews of medical assessment under this Act),
[68] Section 212(3)(c3)
Insert after section 212(3)(c2)--
(c3) the remuneration of the Independent Review Officer (within the
meaning of the Personal Injury Commission Act 2020) and staff of the
Independent Review Officer and costs incurred in connection with the
exercise of the functions of the Independent Review Officer arising
under this Act,
[69] Section 222 Service of documents generally
Insert "or Commission" after "Authority" in section 222(1).
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Schedule 6 Amendment of other legislation
[70] Schedule 3 Provisions relating to Principal Claims Assessor
Omit the Schedule.
6.8 Motor Accidents (Lifetime Care and Support) Act 2006 No 16
[1] Section 20 Determination of disputes
Omit section 20(3). Insert instead--
(3) The Authority is to refer the dispute to the President for the determination of
the Commission under Part 4.4 of the Motor Accidents Compensation Act
1999.
Note. Part 4 of Schedule 4 to the Personal Injury Commission Act 2020 requires the
Commission to be constituted by 3 general members of the Commission assigned to
the Motor Accidents Division of the Commission.
[2] Sections 20(4) and (5) and 21(1) and(2)
Omit "panel" and "panel's" wherever occurring.
Insert instead "Commission" and "Commission's", respectively.
6.9 Statutory and Other Offices Remuneration Act 1975 (1976 No 4)
[1] Schedule 2 Public offices
Omit the matters relating to the President, Deputy President, Acting Deputy President,
Registrar and Senior Arbitrator or other full-time Arbitrator of the Workers Compensation
Commission from Part 1.
Insert instead--
President of the Personal Injury Commission
Deputy President of the Personal Injury Commission
Acting Deputy President of the Personal Injury Commission
Full-time non-presidential member of the Personal Injury Commission
[2] Schedule 2, Part 1
Omit the matters relating to the Principal Claims Assessor under the Motor Accidents
Compensation Act 1999 and Principal Claims Assessor under the Motor Accident Injuries
Act 2017.
6.10 Workers Compensation Act 1987 No 70
[1] Section 32A Definitions
Omit "an approved medical specialist" wherever occurring in paragraph (b) of the
definition of worker with high needs and paragraph (b) of the definition of worker with
highest needs in section 32A(1).
Insert instead "a medical assessor".
[2] Section 53 Weekly payments--residence outside the Commonwealth
Omit "an approved medical specialist" from section 53(1).
Insert instead "a medical assessor".
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[3] Section 57 Worker to notify return to work etc with other employer
Omit "Registrar" from section 57(3). Insert instead "President".
[4] Section 58 Refund of weekly payments paid after return to work etc
Omit "Registrar" from section 58(3). Insert instead "President".
[5] Section 60 Compensation for cost of medical or hospital treatment and rehabilitation
etc
Omit "Registrar" and "an approved medical specialist" from section 60(5).
Insert instead "President" and "a medical assessor", respectively.
[6] Section 87H Registration of commutation agreements
Omit "Registrar" and "Registrar's" wherever occurring in section 87H(1)-(4).
Insert instead "President" and "President's", respectively.
[7] Section 145 Employer or insurer to reimburse Insurance Fund
Omit "section 362 of the 1998 Act" from 145(7).
Insert instead "section 59 of the Personal Injury Commission Act 2020".
[8] Section 151DA Time not to run for commencement of proceedings in certain cases
Omit "approved medical specialist" from section 151DA(5).
Insert instead "medical assessor".
[9] Section 154M Certain provisions extended to scheme agents
Insert "and Personal Injury Commission Act 2020" after "1998 Act" in section 154M(2).
[10] Section 154M(2)
Omit ", 345 and 356". Insert instead "and 345 of the 1998 Act".
[11] Section 154M(2)
Insert at the end of the subsection--
Section 51 of the Personal Injury Commission Act 2020.
[12] Section 245 Disputes as to fitness--medical assessment
Omit "an approved medical specialist" from section 245(1).
Insert instead "a medical assessor".
[13] Section 245(2)
Omit "approved medical specialist". Insert instead "medical assessor".
6.11 Workplace Injury Management and Workers Compensation Act 1998
No 86
[1] Section 4 Definitions
Omit the definition of approved medical specialist from section 4(1).
Insert in alphabetical order--
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Schedule 6 Amendment of other legislation
medical assessor means a person appointed under the Personal Injury
Commission Act 2020 as a medical assessor for the purposes of this Act.
[2] Section 4(1), definition of "Arbitrator"
Omit the definition.
[3] Section 4(1), definition of "Commission"
Omit the definition. Insert instead--
Commission means the Personal Injury Commission of New South Wales
established by the Personal Injury Commission Act 2020.
[4] Section 4(1), definition of "Independent Review Officer"
Omit the definition. Insert instead--
Independent Review Officer means the Independent Review Officer
appointed under Schedule 5 to the Personal Injury Commission Act 2020.
[5] Section 4(1), definition of "mediator"
Omit the definition. Insert instead--
mediator means a person appointed as a mediator for the purposes of this Act
under the Personal Injury Commission Act 2020.
[6] Section 4(1), definition of "medical assessment"
Omit "an approved medical specialist". Insert instead "a medical assessor".
[7] Section 4(1)
Omit the definition of Presidential member.
Insert in alphabetical order--
non-presidential member means a member of the Commission other than a
presidential member.
presidential member has the same meaning as in the Personal Injury
Commission Act 2020.
[8] Section 4(1), definition of "Registrar"
Omit the definition. Insert in alphabetical order--
principal registrar means the principal registrar of the Commission.
[9] Section 4(1), definition of "Rules"
Omit the definition. Insert in alphabetical order--
Commission rules has the same meaning as in the Personal Injury
Commission Act 2020.
[10] Chapter 2, Part 3 Workers Compensation Independent Review Officer
Omit the Part.
[11] Section 35 Payments into and from Fund
Insert "arising under the Workers Compensation Acts" after "functions of the Independent
Review Officer" in section 35(2)(c).
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[12] Section 35(2)(e1)
Omit the paragraph. Insert instead--
(e1) the costs associated with the establishment and operation of the
Workers Compensation Division of the Commission arising from the
Workers Compensation Acts, including--
(i) the expenditure incurred by the Commission in providing
medical assessments and reviews of medical assessments for the
purposes of those Acts, and
(ii) the expenditure incurred by the Commission in providing
services (including mediation services) in respect of claims for
work injury damages,
[13] Section 73 Insurer to provide copies of reports to worker
Omit "an approved medical specialist" from section 73(3)(c).
Insert instead "a medical assessor".
[14] Section 75 Report about delays and the incurring of unreasonable costs by insurers
Omit "The Registrar or another member" from section 75(1).
Insert instead "A member".
[15] Section 80 Required period of notice
Omit "Workers Compensation" from the note to section 80(3).
[16] Section 106 Authority may intervene in proceedings
Omit the section.
[17] Section 119 Medical examination of workers at direction of employer
Omit "an approved medical specialist" from section 119(6)(c).
Insert instead "a medical assessor".
[18] Section 120 Medical examination of worker at direction of Commission
Omit "an approved medical specialist" and "Registrar" from section 120(1).
Insert instead "a medical assessor" and "Commission", respectively.
[19] Section 125 Reimbursement of worker for loss of wages and expenses associated
with medical examination
Omit "an approved medical specialist" from section 125(2).
Insert instead "a medical assessor".
[20] Section 126 Copies of certain medical reports to be supplied to worker
Omit "an approved medical specialist" from section 126(3)(c).
Insert instead "a medical assessor".
[21] Section 239 Authority may obtain documents from certain registries
Omit "Registrar of the Commission" from section 239(2).
Insert instead "principal registrar of the Commission".
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[22] Section 239(3)
Insert "or principal registrar" after "Registrar".
[23] Section 281 Liability to be accepted and settlement offer made
Omit "an approved medical specialist" from section 281(2)(a).
Insert instead "a medical assessor".
[24] Section 284 Insurer liable to pay fee if claim goes to assessment
Omit "Registrar" wherever occurring in section 284(1) and (6). Insert instead "President".
[25] Section 288 Referral of disputes to Commission
Omit "Registrar" wherever occurring. Insert instead "President".
[26] Section 289A Further restrictions as to when a dispute can be referred to
Commission
Omit "Registrar" from section 289A(2)(b). Insert instead "President".
[27] Section 289B Stay of disputed work capacity decision
Omit "Registrar" from section 289B(3). Insert instead "President".
[28] Section 290 Information exchange between parties
Omit "Registrar" wherever occurring in section 290(1) and (6).
Insert instead "President".
[29] Sections 290(1), 294A, 302, 315(1), 316(1)(b) and 318A(6)
Omit "Rules" wherever occurring. Insert instead "Commission rules".
[30] Section 290(5)
Omit "regulations" wherever occurring. Insert instead "Commission rules".
[31] Section 292 Expedited assessment
Omit "Registrar". Insert instead "President".
[32] Section 293 Medical assessment
Omit "Registrar" wherever occurring in section 293(1) and (3). Insert instead "President".
[33] Section 294 Certificate of Commission's determination
Omit section 294(3).
[34] Sections 294A and 302, headings
Omit "Rules" wherever occurring. Insert instead "Commission rules".
[35] Section 294A(1)(b)
Omit "approved medical specialists". Insert instead "medical assessors".
[36] Sections 296, 307 and 308, headings
Omit "Registrar" wherever occurring. Insert instead "President".
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[37] Sections 296, 297(1), (3) and (4), 299(1), 302, 303, 306, 307, 308(1), 309 and 310
Omit "Registrar" wherever occurring. Insert instead "President".
[38] Section 304B
Omit the section. Insert instead--
304B President may deal with dispute
(1) The President may determine the dispute instead of the Commission.
(2) For the purposes of determining the dispute, the President has all the functions
of the Commission under the Workers Compensation Acts and any
determination of the President is taken to be the determination of the
Commission.
Note. The President has power under section 18 of the Personal Injury Commission
Act 2020 to delegate the President's function under this Act to certain members and
registrars of the Commission.
(3) This Division does not affect any jurisdiction of the Commission to determine
a dispute involving weekly payments of compensation.
[39] Sections 308(2) and (3) and 317(3)
Omit "Registrar's" wherever occurring. Insert instead "President's".
[40] Section 313 Threshold dispute prevents service of pre-filing statement and
commencement of court proceedings
Omit "an approved medical specialist". Insert instead "a medical assessor".
[41] Section 314 What constitutes threshold dispute
Omit "an approved medical specialist" wherever occurring in section 314(1) and (2)(b).
Insert instead "a medical assessor".
[42] Section 317 Defective pre-filing statement
Omit "Registrar" wherever occurring in section 317(2) and (3).
Insert instead "President".
[43] Section 318A Mediation of claim before commencement of court proceedings
Omit "Registrar" wherever occurring in section 318A(5). Insert instead "President".
[44] Section 318D Powers of mediators
Omit "sections 357-359" from section 318D(1).
Insert instead "sections 49-51 of the Personal Injury Commission Act 2020".
[45] Section 318F Appointment of mediators
Omit the section.
[46] Section 318G Protection of mediators
Omit the section.
[47] Section 318I Orders for access to information and premises
Omit "Registrar" from section 318I(1). Insert instead "President".
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[48] Section 318I, note
Omit "section 357".
Insert instead "section 49 of the Personal Injury Commission Act 2020".
[49] Section 319 Definitions
Omit the definition of approved medical specialist.
[50] Section 320 Appointment of approved medical specialists
Omit the section.
[51] Section 321 Referral of medical dispute for assessment
Omit "Registrar" and "approved medical specialist" wherever occurring.
Insert instead "President" and "medical assessor", respectively.
[52] Section 321A Referral of medical dispute concerning permanent impairment
Omit "Registrar" from section 321A(3). Insert instead "President".
[53] Section 322 Assessment of impairment
Omit "An approved medical specialist" and "the approved medical specialist" from section
322(4).
Insert instead "A medical assessor" and "the medical assessor", respectively.
[54] Section 322A One assessment only of degree of permanent impairment
Omit "Arbitrator" from section 322A(4).
Insert instead "non-presidential member".
[55] Section 323 Deduction for previous injury or pre-existing condition or abnormality
Omit "approved medical specialist" from section 323(3). Insert instead "medical assessor".
[56] Section 324, heading
Omit "approved medical specialist". Insert instead "medical assessor".
[57] Section 324(1) and (2)
Omit "approved medical specialist" wherever occurring. Insert instead "medical assessor".
[58] Section 324(3) and (4)
Omit section 324(3). Insert instead--
(3) This section extends to the assessment of a medical dispute in the course of an
appeal or further assessment under this Part.
(4) A medical assessor hearing the appeal or who is assessing the matter by way
of further assessment has all the powers of a medical assessor under this
section on an assessment of a medical dispute.
[59] Section 325 Medical assessment certificate
Omit "approved medical specialist", "Registrar" and "approved medical specialist's"
wherever occurring in section 325(1)-(3).
Insert instead "medical assessor", "President" and "medical assessor's", respectively.
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[60] Section 325(4)
Omit the subsection. Insert instead--
(4) A medical assessor is competent to give evidence as to matters in a certificate
given by the assessor under this section, but may not be compelled to give
evidence.
[61] Section 327 Appeal against medical assessment
Omit "an approved medical specialist" and "the approved medical specialist" from section
327(2) and (6).
Insert instead "a medical assessor" and "the medical assessor", respectively.
[62] Section 327(4), (5) and (6)
Omit "Registrar" wherever occurring. Insert instead "President".
[63] Section 328 Procedure on appeal
Omit section 328(1) and (2). Insert instead--
(1) An appeal against a medical assessment is to be heard by an Appeal Panel
constituted by 3 persons chosen by the President as follows--
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers
Compensation Division of the Commission.
(2) The appeal is to be by way of review of the original medical assessment but
the review is limited to the grounds of appeal on which the appeal is made.
(2A) To avoid doubt, any medical re-examination of the worker for the purposes of
the review need not be conducted by all of the members of the Appeal Panel
if the members agree for it to be conducted by only some of the members.
[64] Section 329 Referral of matter for further medical assessment or reconsideration
Omit "Registrar" and "approved medical specialist" wherever occurring in section 329(1)
and (1A).
Insert instead "President" and "medical assessor", respectively.
[65] Section 330 Costs of medical assessment
Omit "approved medical specialists" from section 330(1).
Insert instead "medical assessors".
[66] Section 331, heading
Omit "Guidelines". Insert instead "Commission rules".
[67] Section 331
Omit "Workers Compensation Guidelines". Insert instead "Commission rules".
[68] Section 347 Regulations for costs assessment
Omit section 347(4). Insert instead--
(4) Without limiting this section (but subject to the Personal Injury Commission
Act 2020 and the Commission rules), the regulations may make provision for
or with respect to--
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(a) the assessment of costs by the Commission, and
(b) appeals to the Commission against the assessments of costs by the
Commission.
Note. Clause 5 of Schedule 3 to the Personal Injury Commission Act 2020 provides for
the Commission to be constituted by 1 non-presidential member assigned to the
Workers Compensation Division of the Commission when dealing with costs
assessments under the regulations. The clause also provides that the Commission is
to be constituted by a presidential member of the Division when dealing with appeals
against costs assessments.
[69] Chapter 7, Part 9, heading
Omit the heading. Insert instead--
Part 9 References and appeals
[70] Sections 349, 350, 354-362, 364 and 365
Omit the sections.
[71] Sections 351 and 353, headings
Omit "Presidential" wherever occurring. Insert instead "presidential".
[72] Section 351(1)
Omit the subsection. Insert instead--
(1) A question of law arising in proceedings under the Workers Compensation
Acts before the Commission constituted by a non-presidential member may,
with the leave of the President, be referred by the member for the opinion of
the Commission constituted by the President.
[73] Section 351(2)
Omit "Arbitrator's". Insert instead "non-presidential member's".
[74] Section 351(5)
Omit "an Arbitrator". Insert instead "a non-presidential member".
[75] Section 352, heading
Omit "Arbitrator". Insert instead "non-presidential member".
[76] Section 352(1)-(2B)
Omit section 352(1) and (2). Insert instead--
(1) A party to a dispute in connection with a claim for compensation may appeal
to the Commission constituted by a presidential member against a decision in
respect of the dispute by the Commission constituted by a non-presidential
member.
(2) An appeal is to be made by application to the President.
(2A) The appeal is not to proceed unless the President is satisfied that the procedural
requirements of this section and any applicable Commission rules and
regulations as to the making of an appeal have been complied with.
(2B) The President is not required to be satisfied as to the substance of the appeal.
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[77] Section 352(6A) and (7)
Omit section 352(7). Insert instead--
(6A) On appeal, the decision may be confirmed or may be revoked and a new
decision made in its place.
(7) Alternatively, the matter may be remitted back to the non-presidential member
concerned, or to another non-presidential member, for determination in
accordance with any decision or directions of the Commission (including, in
the case of a decision about the degree of permanent impairment resulting
from an injury, a direction to refer the matter for assessment by a medical
assessor under Part 7).
[78] Section 353(1)
Insert "under the Workers Compensation Acts" after "proceedings".
[79] Chapter 7, Part 10, Division 1 Workers Compensation Commission
Omit the Division.
[80] Section 376 Issue of guidelines
Omit section 376(1)(b).
[81] Section 376(2)
Omit the subsection.
[82] Part 11 Reconsideration of decisions
Omit the Part.
[83] Schedule 5 Provisions relating to members of Commission
Omit the Schedule.
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