Edition 2 - September 2020

Welcome

Welcome to the second edition of Towards the PIC. Since my last message I have commenced advertising for the Principal Registrar (Executive Director), an important role in the PIC. The advertisements which went live on 9 September 2020 can be found here:

• DCS Internal Jobs Board
• IworkforNSW
• Seek

The closing date for applications is 18 September 2020. This is a key leadership role which will require the successful candidate to provide clear guidance and direction to enable the PIC to deliver on key strategic objectives.

Also as promised, we have produced a set of PIC Frequently Asked Questions (FAQs) and I have taken the opportunity to share them with you below. I anticipate that you will find the information useful and look forward to sharing more with you soon.

Sincerely,

Judge Gerard Phillips

PIC Frequently Asked Questions (FAQs)

1. What is the PIC legislation?

The NSW Government has passed legislation that establishes a new tribunal for injured people claiming against the compulsory third party (CTP) and workers compensation insurance schemes.

The Personal Injury Commission (PIC) will form a single, independent tribunal in New South Wales with specialist motor accidents and workers compensation divisions. 
The PIC Act was assented to on 11 August 2020, and can be found here.

2. When will the PIC start?

The date for establishment of the PIC is 1 March 2021. The establishment date is when the PIC formally commences its operations as an independent tribunal.

3. Who does the PIC legislation impact?

Personal Injury Commission

The PIC legislation incorporates the dispute resolution functions currently undertaken by the DRS, CARS, MAS and the WCC into a single Personal Injury Commission (PIC) with specialist workers compensation and motor accidents divisions.

Therefore, the PIC legislation provisions that establish the PIC impacts the staff in SIRA’s DRS and the WCC undertaking work and dispute related functions for these entities, as well as the office holders, service providers and members in the current dispute entities. 
It is important to note that the PIC legislation provides for a legislative framework for a Personal Injury Commission only. It does not address operational matters such as the operational structure of the PIC, or individual staff roles.

A body of operational implementation work will now be undertaken between now and March 2021, to establish the PIC and transition the dispute resolution functions currently undertaken by SIRA and WCC, into the PIC.

The executive teams of SIRA DRS and WCC will work actively and constructively with President Judge Phillips and People and Culture in this implementation activity and keep you informed throughout this process. The Department will manage any change consistent with its obligations and will keep staff informed of developments as they occur.

4. What is the PIC?

The PIC is an independent statutory tribunal that delivers the current functions of DRS, CARS, MAS and the WCC, in specialist motor accidents and workers compensation divisions.

To achieve this, the PIC legislation transfers the jurisdiction of the existing dispute bodies into specialised motor accidents and workers compensation divisions and preserves existing scheme arrangements through the existing scheme legislation, which becomes enabling legislation in the PIC legislation framework. This transfer of functions will occur on establishment on 1 March 2021, and the existing bodies- the WCC, DRS, CARS and MAS will be abolished at that time.

The PIC will sit within the NSW Department of Customer Service cluster and be staffed by public service staff who are employed by the Department of Customer Service, not unlike the current WCC and DRS. The Members of the PIC are not public servants, rather to preserve their decision-making and independence they are Ministerial appointees. 

More detail on the PIC can be found in the Minister’s second reading speech here.

5. Who is the President of the PIC? Who are the Division Heads of the PIC?

On the 26 August 2020 the Attorney General appointed Judge Gerard Phillips as the inaugural President of the PIC and Rodney Parsons, current Registrar of the Workers Compensation Commission and Marie Johns, current Principal Claims Assessor of the DRS as the inaugural Division Heads of the PIC.

6. What are some of the principal features of the PIC?

The legislation establishes an independent tribunal, with an aligned and integrated membership structure for the appointment of members, medical assessors, merit reviewers and mediators.

The PIC is to be accessible and responsive to the needs of all users, encourage early dispute resolution and resolve the real issues between parties, justly, quickly, cost effectively and with as little formality as possible.A Rule Committee will make rules for the Commission's practice and procedure.

In leading the Commission, the PIC President is responsible for directing the business of the Commission, managing members, facilitating the adoption of good administrative practice, giving directions about practice and procedure, and appointing decision-makers and mediators. 
Division Heads will be responsible for managing the business of the Commission in their respective division. They will play an important role in ensuring there is specialised jurisprudence, knowledge, practice and procedure appropriate to the divisions.

Medical assessors, merit reviewers and mediators are not members of the Commission, but exercise functions as conferred on them by the legislation and the enabling legislation under the general control and direction of the President.

A public servant Principal Registrar role has been created in the legislation to assist the President in managing the business and affairs of the Commission. This important role will be advertised shortly and a merit selection process will be undertaken.

The President and the Division Heads will be responsible for leading the members of the Commission and the business of the Commission, and broadly, the Principal Registrar will oversee the Commission's day-to-day operations, including its staff, registry, budget, digital platform, and ensure the Commission maintains a high level of customer focus.

7. What are the objects of the PIC legislation?

The objects are contained in Section 3. They are:

(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.

8. Do the PIC reforms impact existing entitlements and benefits under the schemes?

No, compensation entitlements and benefits under the workers compensation and compulsory third-party schemes are not impacted by these changes.

The PIC legislation preserves the underlying substantive law concerning the entitlements of injured people to damages or other compensation or assistance under workers compensation legislation or motor accidents legislation.  The Government adopted this model after considering feedback from stakeholders who strongly advocated for a minimalist approach. This also means there is no change to court access under the schemes.

9. How do the reforms impact those with current or pending matters in the Workers Compensation Commission or the dispute resolution services of the State Insurance Regulatory Authority?

The PIC legislation provides regulation making powers with respect to the transition of current matters. It is intended to make regulations in respect of existing rights and the transfer of pending proceedings to the Commission to provide that these matters will be determined under the existing law that applied before the Commission was established.

Regulations will ensure that the existing rights of those with current or pending matters in the existing entities be transferred into the Commission. This will closely reflect the approach to transitional matters taken by the NSW Civil and Administrative Tribunal when it was first established.

Any current or pending matters will be heard and determined in accordance with the legislative framework that applied before the establishment of the Commission. A party who immediately before establishment of the Commission has unexercised rights, including rights to appeal, will have those rights preserved.

10. How does the PIC legislation ensure business continuity and retention of expertise in the PIC?

Transitional provisions provide that all current office holders (office holders who are appointed immediately before the establishment date) will be transferred into the Commission, for either a period of 12 months from establishment or to serve out their current term of appointment, whichever is the greater.

This includes the WCC President, Deputy Presidents, Registrar, Arbitrators, mediators, Approved Medical Specialists, and in CTP the Principal Claims Assessor, Claims Assessors, Merit Reviewers, and Medical Assessors.

The intent is that office holders will hold appointments until immediately before or beyond the establishment date for the Personal Injury Commission. This ensures that existing office holders are “caught” by the transitional provisions.

Public servants are excluded from these transitional arrangements as their terms and conditions of employment are subject to the usual public sector terms and conditions governing their employment, and this will form part of the operational implementation of the PIC.
The President of the Commission will also be able to advise the Attorney General on appointments required or otherwise appoint office holders under the provisions contained in the bill upon assent.

11. What was the consultation process for development of the PIC legislation?

The Department of Customer Service consulted widely with key stakeholders in relation to the Bill, supported by a project team in the DCS Office of the Secretary (OSEC). 
A Reference Group was established to provide expert advice on the reforms, consisting of key government agencies including SIRA, icare, the Workers Compensation Commission and the Workers Compensation Independent Review Office.

The Department also consulted with members of the Standing Committee on Law and Justice; representatives of workers compensation and CTP insurers; the Law Society of NSW; the Australian Lawyers Alliance; the NSW Bar Association; the NSW Business Chamber; the Australian Industry Group; Unions NSW; the Australian Medical Association and other relevant medical colleges and health practitioner regulatory bodies; and the Insurance Council of Australia.

In addition, DCS conducted targeted consultation with Workers Compensation Commission arbitrators and mediators, CARS assessors, AMS’s and medical assessors in both the WCC, DRS and MAS

12. Why is a Rule Committee established in a PIC?

Establishing a Rule Committee for the Commission represents the preferred approach in a consolidated multi-scheme, multi-division commission framework for rule making. It is important to understand that the Rule Committee is not a representative body. It is a professional rule making body which will set the requirements for practice in the PIC.The rules made by the Rule Committee provide for the practice and procedure to be followed in Commission proceedings and in proceedings before medical assessors, mediators and merit reviewers.

The Rule Committee does not make guidelines (SIRA continues to make scheme guidelines), regulations, or set assessment methodology and is not a stakeholder representative group.
The PIC will establish a user group for engaging with stakeholders in both workers compensation and motor accidents divisions.

13. What is the composition of the Rule Committee and how will it operate?

The legislation proposes a Rule Committee which includes representation from

* The President 
* Each division head, 
* 2 persons nominated by the Law Council, 
* 2 persons nominated by the Bar Council,  
* 1 person nominated by SIRA, 
* 1 medical expert jointly nominated by Presidents of the relevant medical colleges,  
* 1 industry representative jointly nominated by relevant industry groups, and
* 1 person nominated by Unions NSW.

The PIC President chairs the Committee. The Rule Committee may regulate its own procedures. A Commission rule cannot take effect, unless the President votes for the rule or gives written consent for its making. 10 of the 11 members of the Rule Committee have been appointed and the first meeting of this body is likely to commence the week commencing 21 September 2020.

14. The President of the PIC has a lot of functions and powers. Why?

The President is an independent judicial officer, not a public servant. It is a significant safeguard to the independence and impartiality of the PIC that it is headed by a Judge. Additionally, there are two further elements to this.

1. As the independent head of an independent statutory tribunal, the powers given to the President are reminiscent of powers given to heads of jurisdiction in other tribunals.

2. Second, many functions have been given to the President to enable the transition of functions performed in the existing dispute bodies (the DRS, CARS, MAS and the WCC) to the PIC.

These functions exercised by officer holders in the WCC and SIRA’s DRS must be transferred into the Personal Injury Commission as those offices will no longer exist. 
It is appropriate that some of these functions transfer to the President, who is the most senior member of the Commission, an independent judicial officer and the head of jurisdiction in the schemes.

There are very broad powers of delegation to enable the PIC to function efficiently, fairly and effectively. The legislation provides flexibility to enable the President and Division Heads, to delegate functions to other members, a registrar or any other member of staff of the Commission including powers of sub-delegation.

15. There are federal provisions in the PIC legislation. What are these?

Part 3, Division 3.2 sets out provisions relevant to matters involving federal jurisdiction, where the Personal Injury Commission does not have jurisdiction. In Burns v Corbett (2018) 352 ALR 386 and Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1, the Court of Appeal held that State legislation which confers power on a state body will contravene the federal Constitution if the body hears and determines disputes including a matter identified in ss 75 or 76 of the Constitution; is not a ‘court of a State’; and is exercising judicial, and not administrative, power in hearing and determining the dispute.

A small proportion of matters that the Commission hears are likely to be impacted and would mostly concern disputes between natural residents of different states or the state and a resident of another state. Division 3.2 of Part 3 and consequential amendment to the District Court Act 1973 give affected parties a forum in which to resolve their dispute. These provisions allow certain persons, with leave of the District Court, to commence proceedings in the District Court for the determination of applications that the Commission, or decision-makers appointed by the President, cannot determine because they involve the exercise of Federal jurisdiction.  The amendments will provide affected parties with a forum (the District Court) in which to resolve their dispute.

The District Court is the preferred forum for these disputes because it has expertise in these personal injury schemes and current jurisdiction in respect of in work injury damages claims and motor accident damages assessments.

16. How will the PIC be funded?

The PIC will be funded through the motor accidents and workers compensation operational funds. This is not a change as the WCC, DRS, MAS and CARS are currently funded through these funds, specifically, in a levy on premiums.

17. WCC and DRS have different dispute management systems. Will there be one common dispute management system used by the PIC?

Both the WCC and DRS have digital platforms and have moved to paper lite processes. Hearings by telephone or audio-visual means are now commonplace in both organisations. The PIC will build upon and expand this digital delivery of dispute resolution services.

Whilst for the first 12 months the PIC will deploy the 2 existing systems to ensure continuity of service delivery, we will be working during 2021 to develop and implement a single ICT platform for the PIC. As the Minister said in the second reading speech, there are significant benefits from the harmonisation of processes, and this is what the PIC will be pursuing. We want to make it easy for both members of the public and practitioners alike to use and navigate the PIC IT portal.