Inaugural ceremonial sitting speeches
Access transcript and recording of speeches presented at the inaugural ceremonial sitting of the Commission on 1 March 2021.
PERSONAL INJURY COMMISSION OF NEW SOUTH WALES
JUDGE GERARD PHILLIPS, PRESIDENT AND MEMBERS OF THE COMMISSION
MONDAY 1 MARCH 2021
CLOSING CEREMONY FOR THE WORKERS COMPENSATION COMMISSION OF NEW SOUTH WALES
CEREMONIAL FIRST SITTING OF THE PERSONAL INJURY COMMISSION OF NEW SOUTH WALES
Ms Marianne Christmann, Principal Registrar, Personal Injury Commission
Mr Gary Ella
The Hon. Mark Raymond Speakman, SC MP, NSW Attorney General
The Hon. Victor Michael Dominello, MP, Minister for Customer Service
Mr Michael McHugh SC, President, NSW Bar Association
Ms Juliana Warner, President, NSW Law Society
PRESIDENT: Thank you, Principal Registrar Christmann.
CHRISTMANN: Ceremonial sitting marking the abolition of the Workers’ Compensation Commission of New South Wales and the inaugural sitting of the Personal Injury Commission of New South Wales.
PRESIDENT: Thank you. Thank you, Mr Ella.
ELLA: Good morning ladies and gentlemen, I’ve been asked today to give an acknowledgement of Country. My name is Garry Ella, I’m a member of the Aboriginal Lands Council and we’re meeting today on the Gadigal Land of the Gadigal People of the Eora Nation.
My ancestry goes back to the South Coast of New South Wales. On my mother’s side, she’s a Yuin lady, or woman, and she’s quite adamant and quite strong about her culture. My father is a Bidjigal man, which is the north side of Botany Bay.
The land that we’re on at the moment is the Gadigal Land. The land is the East Coast of Sydney that’s shared with the Bidjigal People as well, so it’s quite important that people acknowledge that.
The ceremony for a welcome to country and acknowledgement of country, this is a modern version of an ancient tradition where people used to travel across different borders.
In the Eora Nation there’s 29 different clans within that group, or 29 different language groups, and when people used to cross the borders into somebody else’s land they used to stop for the welcome and acknowledge it. So during that ceremony the people travelling would seek permission to travel on the land and the traditional owners would honour that by saying “Yes” or saying “No, that you can’t come through”, but it was all part of that ceremony.
So this being a modern part of that ceremony it’s a lot shorter, obviously to accompany it we’d have a smoking ceremony as well, and it could go on for a couple of days, so it’s quite important.
During that ceremony they’d also make a commitment to obey the laws, the cultural aspects, and the land itself, and so that was quite important. So, People, I’d like to, as a visitor to this land, I guess we’re all visitors, I just wanted to pay our respects to the elders past and present, to the traditional land owners, the people of the Eora Nation. Obviously holding this ceremony the Injured Persons Commission is showing their respect for Aboriginal people, Aboriginal culture and Aboriginal history, and the fact that it demonstrates that Aboriginal culture is still alive in this community.
With that I’d also like to thank Judge Phillips for the invitation and, as I’ve mentioned, the members of the Commission, and hope that you are very successful in your very important work in the future, thank you.
PRESIDENT: Thank you, Mr Ella. Mr Attorney.
ATTORNEY GENERAL: May it please the Commission. I too acknowledge that we gather on Gadigal land and pay my respects to elders, past, present and emerging.
On the last occasion I was at the Workers’ Compensation Commission it was for the unveiling of two wonderful portraits of former Presidents of that Commission, Justice Terry Sheahan and Judge Greg Keating, both of whom as with us here today.
The portraits of the former Presidents continued the tradition of honouring past heads of that jurisdiction, all the way back to the first judge of the Commission, Judge Perdriau, who commenced in 1926. Each portrait reflects the tradition and innovation of the times.
Back in 1938 Sir Winston Churchill said that “without tradition, art is a flock of sheep without a shepherd. Without innovation it is a corpse”. The same can be said of the constant interplay of tradition and innovation as it applies to the law.
Today we’re celebrating the innovation and new life of a Commission. We’re also celebrating what’s come before, the traditions and contributions upon which this Commission is built.
SIRA’s Dispute Resolution Service and the Workers’ Compensation Commission have longstanding track records of excellence in the resolution of matters.
In the last financial year the Dispute Resolution Service resolved nearly 9,000 applications. In the same period the Workers’ Compensation Commission resolved over 7,000. Together, that’s over 16,000 applications resolved outside the Court system. That’s pressure relieved from the District Court lists, and that’s people saved from the costs and stress of litigation.
Courts should be the last resort for resolving disputes. Alternative dispute resolution is an important option for individuals to try to resolve their disputes without expensive, stressful and complex litigation.
The idea for this Commission is not new. The 2017 Parliamentary review found what had been common knowledge for some time, that the complexity of two separate dispute resolution processes for work capacity decisions and liability matters was a major issue.
It was also not surprising when in the 2018 Parliamentary Committee report, chaired by my Parliamentary Secretary Natalie Ward, there was “consensus that one tribunal would provide certainty, efficiency and better streamlining of decision making for claimants”. Today is the realisation of that vision. I acknowledge the multi-partisan support and work of David Shoebridge and Daniel Mookhey.
It’s no small feat to establish a Commission. The work behind the scenes has been enormous and I thank everyone involved.
This means a farewell to the Workers’ Compensation Commission and the Dispute Resolution Service.
The Dispute Resolution Service has a 20 year tradition of resolving large volumes of applications outside of the mainstream court system. In the past 12 months there were 9,600 matters of all types lodged in the Dispute Resolution Service.
The Service was the product of a policy change to remove a large quantity of third party cases from the Court system and to attempt to deal with them in a different manner.
The Service acquired a reputation for the expert knowledge of its assessors, its tribunal-style practices and its ability to deal with a large volume of cases quickly and efficiently. All these will benefit the new Commission.
The Workers’ Compensation Commission has a long tradition of dispute resolution, its themes of independence, timeliness and effectiveness continue to shape the jurisdiction to date.
It’s a tradition that dates way back. The first judge of the Workers’ Compensation Court, Judge Ralph Perdriau, began studying law in the 1880s at the University of Sydney. Beginning on the same day was Philip Whistler.
Street who, later, as well as being Chief Justice and Lieutenant Governor, was for a time Deputy President of the NSW Arbitration Court. I wonder if these two men ever discussed something akin to alternative dispute resolution as we know it today.
I mention this because many years later Sir Phillip Whistler Street’s grandson, Sir Laurence Street, was seeking ideas for establishing alternative dispute resolution in Sydney. Justice Terry Sheahan was asked for his ideas and able to establish the first independent ADR organisation in Australia, the Australian Commercial Disputes Centre.
Justice Sheahan’s innovative ideas for early intervention, document exchange and informal conferencing, challenged the profession but ultimately made the process easier for workers, their families, and employers before the Commission.
Judge Keating continued to add knowledge and experience to the Commission. Under Judge Keating the Commission had a reputation for efficiency with the majority of disputes being resolved within three months of lodgement.
In January 2019 we celebrated the swearing in of Judge Gerard Phillips. Judge Phillips brought more than 30 years of legal experience and was consistently recognised as one of Australia’s top industrial lawyers in Chambers Australia-Pacific legal directory. Judge Phillips, your practice has shaped an abiding belief in “resolution before litigation” and your Honour has acted on that belief in your two years in that role.
Your Honour has already made excellent headways today. In April 2019 the Commission opened an online lodgement portal which has created a time-efficient and more seamless customer experience for the resolution of disputes, and your Honour has led the way in establishing the new Commission, looking at the needs of members, rules, new regulations, streamlined IT and of course the website.
You will continue no doubt to shape a modern tribunal where people will have their cases heard fairly, quickly and in a cost-efficient way.
At the heart of this new Commission are people: injured workers, people injured in motor accidents, their families, employers, insurers and legal professionals. This is a complex jurisdiction. It’s a high level of responsibility you hold.
The review pointed to the need to honour the expert knowledge of workplace injury and motor vehicle injury. That will be maintained. Important specialised knowledge that can make a big difference to the experience of injured people, their families and employers. At the same time the sharing of expert knowledge and experience will benefit everyone seeking resolution.
It’s not just experience that’s required in such a diverse field but a level of co‑operation between everyone involved. In response to the proposition that if a man were offered a job he should take it, Judge Perdriau famously exclaimed that “you can’t force a man to work” and that this was a sacred right of all Englishmen.
The Commission is made up of people willing to work together, as professionals, aggrieved and accused, to resolve disputes without resorting to strictly adversarial means. These people, this co-operation, is what supported the previous Commission and the DRS and will continue to underpin the new Commission.
We stand here today benefiting from the traditions and influences of those former stewards of the jurisdiction. The distillation of their knowledge and experience guides the way for tradition and innovation in this new Commission.
To everyone who’s contributed to the foundations of the Personal Injury Commission thank you. You’re making a positive difference to the lives of injured people, their families and employers. May it please the Commission.
PRESIDENT: Thank you. Thank you, Minister.
MINISTER DOMINELLO: May it please the Commission. When I became the Minister responsible for the newly formed State Insurance Regulatory Authority in September 2015 the agency informed me that the two big ticket items in the portfolio were CTP reform and dispute resolution in the workers’ compensation scheme.
Perhaps a little frustrated by the lack of progress on these two reforms in the preceding years the agency at the time recommended we move fast to take proposals to cabinet and introduce legislation on both fronts. They said, “Minister, we’ve done the consultation and the modelling and we believe the work is largely done on both the CTP reform and dispute resolution. We recommend that you also kick off consultation as soon as you can on dispute resolution reform”.
Once I came to the understanding that the complexities of these two schemes were immense and the history surrounding previous attempts to reform them, I concluded that this was the wrong approach. For a new Minister to attempt to crash through with major structural reforms to both schemes would be crazy brave.
I decided a more prudent approach would be to tackle one at a time and to start the CTP reform process afresh with a new consultation process. This involved the release of an options paper, a position paper and an exposure draft bill.
In March 2017 the CTP reforms passed the Parliament and on 1 December that year the new scheme came into being. We now have a much more affordable, sustainable and data-driven CTP scheme. That is a result of a lengthy consultation and negotiation with scheme providers and stakeholders.
It was a collaboration and without that collaboration we would not have achieved the great results that we are seeing today.
I think it’s fair to say that the CTP reform has stolen some of the limelight from the dispute resolution reform process which has quietly been progressing in the background over the last four years.
We kicked off a consultation process in mid-2017 involving SIRA, Icare, WIRO, the Workers’ Compensation Commission, as well as the lawyers, insurers and the unions. In October 2018 the first tranche of reforms passed the Parliament.
This legislation sought to simplify the dispute resolution process for injured workers by clarifying the roles of SIRA and the WIRO in relation to complaints handling, reinstating the WCC’s jurisdiction to determine both merit and procedural reviews, simplifying the calculation of PIAWE and removing the requirement for mandatory internal reviews.
The next step in the journey was to bring together workers’ compensation and CTP disputes into the one tribunal. Aided by several Law and Justice Committee forensic inquiries and reports the Government was able to push ahead with the vision, knowing there was strong bipartisan and cross-bench support for the reforms.
And so in August 2020, with the successful passage of the Personal Injury Commission Bill, Australia’s newest tribunal was born. The Personal Injury Commission is the next step in delivering a better workers’ compensation or motor accident scheme experience for the great people of our State.
It creates a contemporary, multi-scheme Commission, striking the right balance in consolidating the two schemes into the one Commission whilst recognising and preserving their important legal and scheme design differences. It allows for the Commission to evolve over time and develop greater alignment of processes.
Historically personal injury law, be it workers’ compensation, motor accident, or indeed other aspects of personal injury law, has been neither unified nor consistent. There are a number of reasons for this; different insurance schemes, different policy settings and different insurable risks.
The Personal Injury Commission is but the first step in attempting to show that two different schemes can benefit from a consistent approach in dealing with their disputes.
It is an approach which puts injured people, employers and insurers, at the centre of the Commission’s functions. Customers will experience this from today, and benefit from the reduced time, stress and complexity, dealing with a single Commission with less complexity, less bureaucracy and a greater harmonisation of processes.
Governments often see themselves at the centre of the universe, this paradigm needs to shift. Government and its many systems should revolve and evolve around the people we’re elected to serve. It is my expectation that this ethos will drive an inevitability where regardless of the cause or place of injury the process of compensation and rehabilitation is always centred around the individual.
The architecture of the Personal Injury Commission modelled on the successful approach at NCAT readily lends itself to future development. Ultimately the new Commission is structured to deliver today’s personal injury landscape and to respond to its future.
Through the PIC New South Wales now has an opportunity to improve the historically fragmented approach to personal injury dispute resolution.
At the heart of all injury insurance schemes is a desire to support people in the community who are injured and to help them recover. Whether you’re injured in the course of employment, or on the road, having an accident is disruptive and indeed traumatic enough. We have a shared responsibility to do all we can to reduce further process trauma and make an injured person’s journey as stress-free as possible. The establishment of the PIC is a grand step forward in realising this obligation.
Today marks the culmination of countless hours of planning, consultation and testing by Judge Phillips and his team, the State Insurance Regulatory Authority and numerous other stakeholders.
I should acknowledge at this point the pivotal role played by David Shoebridge. As you all know, when it comes to CTP and workers comp in David we have someone who is extremely passionate and knowledgeable. In my negotiations with him on CTP and dispute resolution reform over many many years he has always been true to his word.
Now I’m sure it’s rare for a Liberal Minister to praise a Greens MP but, truth be told, without David’s contribution there would be no CTP reform and there would be no dispute resolution reform, at least not in the unanimous and generally harmonious way these two reforms came into being.
May it please the Commission, I pause to note that Mr Shoebridge called me this morning and asked me to convey his apologies for he’s preparing for budget estimates. It is not lost on me at this moment that as I am here waxing lyrical about David he’s industriously working away to attack the Government. Politics in this sense is a beautiful thing.
There are many other people I need to acknowledge, far too many. However I single out Judge Phillips and Carmel Donnelly for their outstanding leadership and significant contribution to the creation of the PIC.
This is a major reform in personal injury dispute resolution in New South Wales and under the leadership of Judge Phillips is a major step forward for the delivery of better services to the people of our great State. May it please the Commission.
PRESIDENT: Thank you, Minister. Yes, Mr McHugh.
MCHUGH: May it please the Commission, I too acknowledge the traditional owners of the land on which we meet, the Gadigal People of the Eora Nation and pay my respects to their elders past and present.
Thank you, President Phillips, for the opportunity to say a few words this morning on behalf of the New South Wales Bar Association. I acknowledge the many distinguished guests who join us on this important occasion and the Offices that they represent.
The New South Wales Attorney General, the relevant Minister for Customer Service, Justice of Appeal, the President of NCAT, Chief Judge of the District Court, the Cabinet Secretary, Members of New South Wales Parliament including Members of the Law and Justice Committee, the Principal Registrar, and my colleague President of the New South Wales Law Society. I also acknowledge the former heads of jurisdiction are with us today and recognise their significant contributions in this area.
In 1901 Australia’s first Prime Minister Edmund Barton spoke of the High Court and the Interstate Commission, he said: “These two great tribunals will give confidence to citizens everywhere that justice will be secured to them”. Barton emphasised the importance of raising up institutions and said further, “Under which justice shall be done to all”.
Today we have the privilege of bearing witness to the commencement of what we trust will be such a new institution.
President Phillips is right to say, as I’m sure he will, that the new Commission stands on the shoulders of the old. The Commission will carry on the work of its predecessors, the Workers’ Compensation Commission and the Dispute Resolution Service, and their reputations that have been established over many years.
When a Standing Committee on Law and Justice first recommended consolidating the Workers’ Compensation Scheme and CTP Insurance Scheme dispute resolution systems into a single Personal Injury Tribunal it too emphasised, among other matters, that the Commission must be judicial, it must be independent, it must allow claimants to have access to legal representation.
New South Wales Bar Association has been grateful for the opportunity to provide what we hope has been constructive input into the development of the Commission in recent years and to its operations moving forward including through our representatives on the Rules Committee and User Group. I particularly wish to publically thank Robert Sheldon SC, Elizabeth Welsh, and other members of the Bar’s Common Law Committee.
The legal profession at its core is a profession of public service and we look forward to continuing to work with the Commission to serve the community of New South Wales.
The Commission’s core values are enshrined in the objects of the Personal Injury Commission Act 2020. They include that the Commission must be independent, accessible, professional and responsive to the needs of all its users, open and transparent about its processes. It must encourage early dispute resolution, resolve the real issues in proceedings justly, quickly, cost-effectively, and with as little formality as possible. Its decisions must be timely, fair, and no doubt they’ll be of a high quality.
Crucially the Commission must provide public confidence in its decision making and the conduct of its members. We believe it is well placed to do so under the leadership of the President, its members, Principal Registrar, staff, and with assistance from the legal profession. It is vital that it does so.
There are few areas of the law that can directly or indirectly touch the lives of so many in our community than motor accidents and workers’ compensation. Almost every adult in New South Wales will have involvement in personal injury systems like workers’ compensation or motor accidents in some way, through business employment, or car ownership and green slips. Yet it is the feature of both systems that the general public know little of them beyond the cost of their premiums unless and until they or a loved one are injured.
If the unthinkable happens members of the community rightly expect to be able to access a fair and transparent system to have their rights upheld. The public must be able to have confidence that the agencies, regulators, Courts and Commissions, involved in administering and adjudicating workplace injury and motor accidents injury compensation are accessible with the utmost integrity, which is a given, and will afford the injured a fair opportunity to uphold their lawful rights.
This new Commission is a step in the right direction to ensure these worthy goals are attained and crucially by providing a tribunal setting with a right of appearance of a party’s legal representatives.
The Bar Association and others have consistently raised concerns about the performance of the motor accidents scheme particularly against original actuarial assumptions. This is of course a subject for another day but it is nonetheless important in illustrating why the independence of this new Commission, including independence from any regulator, is so critical to its success and to achieving its object of achieving public confidence in its operation and integrity.
We are committed to maintaining our engagement with all stakeholders to achieve the just and fair resolution of claims for those injured on the road or at work.
New South Wales Bar Association also acknowledges the volume of work and contributions for many that have gone into raising up this new institution, especially during the difficulties experienced over the last year. Those accomplishments auger well for its future. The Bar looks forward to continuing to play our role to achieve just and fair resolution for all parties in the new Commission. May it please the Commission.
PRESIDENT: Thank you, Mr McHugh. Ms Warner.
WARNER: May it please the Commission. I too acknowledge the traditional custodians of the land on which we meet, the Gadigal People of the Eora Nation, and I pay my respects to their elders past, present and emerging. I would also like to acknowledge and extend those respects to Aboriginal and Torres Strait Islander Peoples who might be joining us today.
It’s actually an exciting day today it’s not every day that a new judicial body comes into fruition, and I’m here today on behalf of the solicitors of New South Wales to offer my congratulations to the President and staff of the new Personal Injury Commission and to wish you well in your service to our State.
The Law Society has long supported efforts to ensure the just, efficient and cheap resolution of disputes involving injured road users and workers. Since 2018, and as noted in our submission to the Standing Committee on Law and Justice, as part of its second review of the Workers’ Compensation Scheme, the Law Society has supported the establishment of a single independent tribunal presided over by an independent judicial head.
We’ve continued to advocate that the primary consideration in establishing such a body must be that it ensures better outcomes for all involved in the process and we look forward to continuing to engage with the President and the New South Wales Government to ensure that this objective is realised.
As the State’s peak representative body for solicitors our members represent both plaintiffs and defendants both of whom will become key stakeholders in this Commission.
The Law Society’s commitment to personal injury law is well established and we take our role of being a trusted advisor to Government, and to work collaboratively and constructively, very seriously.
I acknowledge, with appreciation, the opportunities the President, Minister Dominello, and the Department of Customer Services, has given to the Law Society to contribute to the Commission’s establishment, targeted consultations, and the opportunity to nominate representatives to key stakeholder fora have enabled our specialist members to contribute their expertise in the area of personal injury law to New South Wales newest tribunal.
In particular I’d like to acknowledge the work of Ian Jones and Shane Butcher who represent the Law Society on the Commission’s Rule Committee, and of Tim Concannon, Lee Davidson, Stephen Harris, and Katherine Toshack, who serve on the Commission’s stakeholder reference group.
So the establishment of a new judicial body is not easy and even during Covid, when people were driving less, or working from home, road accidents and work place injuries continued to occur. So what you’ve been doing in the last little while, as the Silicon Valley techie types would say, is building a plane while flying it. But today’s first ceremonial sitting shows that you’ve achieved just that.
The stakes in all of this could not be higher. It has been said that compensation is a litmus test of the true values of our society. In 2018 the Honourable Michael Kirby AC CMG gave a speech reflecting on the old Compensation Court of New South Wales and how practising in this field of law encouraged both greater practicality and human sensitivity. In it he noted, “Compensation claims take their practitioners close to the human condition. Commonly the cases of ordinary citizens meant the difference between a decent life of self-respect and a life with crippling physical and financial burdens”, and that is what the Commission rightly aspires to. To safeguard and uphold the self-respect and dignity of all who come before it.
It is the hope of everyone in this room that the Commission will continue to strive to support workers and road users to access justice, and I pledge the full support of the Law Society of New South Wales in this endeavour. Congratulations again on all your hard work to achieve this really important milestone. As the Commission pleases.
PRESIDENT: Thank you, Ms Warner.
Mr Attorney General, Mark Speakman SC MP; Minister for Customer Service, the Hon. Victor Dominello MP; Judge of Appeal, his Honour Justice Basten; Chief Judge of the District Court, his Honour Justice Price; President of NCAT, her Honour Justice Armstrong; Alister Henskens SC MP, Cabinet Secretary; Members of the NSW Parliament and in particular members of the Law and Justice Committee; President of the Bar, Mr McHugh SC; President of the law Society, Ms Juliana Warner; Ms Em Hogan, Secretary of the Department of Customer Service; Carmel Donnelly, CEO of the State Insurance Regulatory Authority; Professor Michael Quinlan, Dean of the University of Notre Dame; Mr Gary Ella; distinguished guests; members and staff of the Personal Injury Commission; ladies and gentlemen.
I welcome you all here today, both those here in person and those who are watching remotely to this historic inaugural sitting of the Personal Injury Commission of New South Wales.
The presence of you all here today marks the significance of this occasion for it is a rare event in the justice system of New South Wales for a venerable tribunal such as the Workers’ Compensation Commission to be abolished and a new tribunal to be established in its place. The new however most definitely stands on the shoulders of the old.
It is also appropriate that these ceremonies take place here today in the District Court of New South Wales. Since the original Workers’ Compensation Commission first sat in 1926 six of the eight heads of jurisdiction have been Judges of the District Court.
It is very much part of the work of the District Court to supply judges to head various tribunals in the justice sector of this Sate. The presence of a judicial head in the tribunals of this State is a very real manifestation of the tribunal’s independence and impartiality. The fact that the head of the jurisdiction has judicial tenure and judicial independence serves to enhance public confidence in the tribunal’s legitimacy. This has been the case since 1926, firstly as the Workers’ Compensation Commission, then as the Compensation Court, and then as the Workers’ Compensation Commission in its second coming.
In that time there have been just eight heads in a period of just 95 years. Five of those eight heads of jurisdiction are still alive, and present in court today are two. So I offer a very special welcome to the Honourable Terry Sheahan AO, former Justice of the Land and Environment Court and President of the Workers’ Compensation Commission 2002-2007, and the Honourable Greg Keating, former Judge of the District Court and President of the Workers’ Compensation Commission 2007-2018.
I also acknowledge the presence of long term Workers’ Compensation Commission and Compensation Court Judge, and inaugural President of the Dust Diseases Tribunal, the Honourable John O’Meally. Gentlemen, it is a delight that you are here with us today.
I should say though that whilst it is sad that the famous name of the Workers’ Compensation Commission will pass into legal history, its years of dedicated service to the injured citizens of this State with be the ethos carried forward into the Personal Injury Commission. Its adherence to and application of the rule of law will be of great benefit to the new tribunal.
Indeed the first head of the jurisdiction, Judge Perdriau, when speaking at a civic welcome in Newcastle Council Chambers in 1926, said of the legislation, “there will be no doubt that the Act will be fairly and fearlessly administered”. This is the manner in which the new Personal Injury Commission will be conducted.
I very much consider this new Commission to be linked or connected to these legacy organisations. Longevity of public institutions is an important aspect of the necessary trust and confidence that the public must have in how the tribunal goes about its work. Such trust and confidence of the public and indeed the legal profession cannot be simply claimed it must be earned. This is the task that all of the members and medical specialists of the new tribunal are committed to achieving.
Practice areas or indeed some tribunals are sometimes referred to as being club-like. That is, there is a small set of insiders who practise in the area and if one is not represented by a member of this small group then you are at a disadvantage. This will not be the case with the new Commission.
In putting together the Rules and Procedural Directions we have stayed faithful to both the enabling legislation and tribunal practice. We shall remain faithful to mainstream legal thought and practices. Any diligent practitioner will have no trouble in preparing a case and navigating the new Commission’s processes.
The fact that the Act mandates the publication of all decisions, which will be published electronically, will mean that the entire community and profession will have available to them the most up-to-date authorities on all the areas of the Commission’s jurisdiction. This will be a great benefit to ensuring that people can access the Commission and advance their rights in full knowledge of the decided cases.
I should also say this about the predecessor organisations, they were both great learning grounds for young lawyers, many of whom later became senior members of the judiciary. Names such as Kirby, Glass, Samuels, Studdert, Hoeben, Hall, Campbell and McInerney, to name but a few, all cut their teeth in the law in the tribunal we are farewelling today.
I think it is no secret as to why this jurisdiction has regularly produced such legal giants and that is clear. Compensation law in this State is a statutory construct and those who practise in it must be skilled at statutory interpretation. Statutory interpretation is of course a foundational legal skill, and it is my fervent hope and desire that this new jurisdiction can continue to produce top quality lawyers like the ones I have just mentioned who can serve our community.
For the past 20 years the Dispute Resolution Service has dealt with many thousands of motor accidents claims. In the past 12 months there were over 9,000 matters of all types lodged in the Dispute Resolution Service. This Service, as has been said this morning, was the product of a policy change to remove a large quantity of third party cases from the court system and attempt to deal with them in a different manner. Over that period it has acquired a reputation for its expertise in motor accidents law and dealing with a large volume of cases quickly and efficiently.
The Parliament has now decided that this approach would be enhanced by placing these matters in the new tribunal. This is a decision which is aimed at ensuring public confidence in the independence of the decision makers by being located in an independent tribunal headed by a judge. The new tribunal will greatly benefit from the skill and expertise which the Dispute Resolution staff and members will bring to the new Commission.
In the Commission’s first year of operation in 1926 it dealt with 688 applications. In the heyday of the Compensation Court filings regularly met and exceeded 20,000 per year. In the past 12 months the Workers’ Compensation Commission received 7,201 applications of all types.
Although I will say this in marked contrast to the past. Much of the last 12 months has been conducted in the paperless environment, which was completely planned, with all of our decision makers and staff working remotely, which was not planned at all. It is anticipated in the next 12 months the Personal Injury Commission will deal with between 15-20,000 matters, and to deal with that quantity of cases we will have 57 Members, 24 Mediators, 194 Medical Specialists, 5 Merit Reviewers, serviced by 171 staff.
The idea of the Personal Injury Commission has to my knowledge been around for a long time. Even though the Compensation Court did not have the word Workers in its title it only dealt with Workers’ Compensation Claims. However the intention at its formation was that in time its jurisdiction would grow to encompass wider categories of cases. However the requisite combination of intention, circumstances and luck did not eventuate until the processes which commenced in the Upper House Law and Justice Committee.
I am very pleased that present here today are the Parliamentarians whose hard work and ability to work co-operatively has created Australia’s newest tribunal, and in this regard I acknowledge the Minister for Customer Service Victor Dominello and his staffers Matt Dawson and James Camilleri, who did so much to bring this new Commission to fruition in the Parliament.
I also acknowledge members of the Law and Justice Committee Mr Daniel Mookhey and Mr David Shoebridge. The Law and Justice Committee undertook a review of the workers’ compensation and third party dispute resolution processes which led to the conclusion that this new tribunal would be of benefit to the people of this State. Pleasingly the new Commission had bipartisan support not only in the Parliament, but broadly amongst both systems’ stakeholders.
The fact that this new tribunal commences with such goodwill and support is both pleasing and is a sentiment which we will not take lightly. This opinion will only be maintained if the new tribunal meets its objects as defined by the Parliament in s 3 of the Personal Injury Commission Act and its guiding principle in s 42. These provisions require the establishment of an independent Commission to deal with workers compensation and motor accident matters.
The Commission is to be accessible, professional and responsive and its processes are to be open and transparent. It is to encourage early dispute resolution. Proceedings are to be dealt with justly, quickly, cost-effectively and with as little formality as possible. The Commission’s decisions are to be timely, fair, consistent and of a high quality. These matters are designed to promote the necessary public confidence in the decision making of the Commission and in the conduct of its members.
The guiding principle found in s 42 mandates that the Commission is to facilitate the just, quick and cost-effective resolution of the real issues in dispute in the proceedings and fortunately it imposes a duty on parties to the proceedings to co-operate with the Commission in giving effect to that guiding principle.
It is the mandate of the new Commission to ensure that life and voice is given to these words of the statute. Our country has often been called “The lucky country” after Donald Horne’s 1964 book of the same title. However not everyone shares in that luck, and in particular those who have had the misfortune of being injured either at work or on the road might feel that our community is anything but lucky for them.
Whilst the new Commission cannot undo the hurt that has been suffered, we can bring to bear a humane process which determines people’s rights justly and with respect for their essential dignity. By implementing processes which are typical of tribunal practice the real issues of the case can be quickly dealt with and with no added trauma being visited upon those who have already been hurt.
This is not to forget that at least half of the litigants in the new tribunal will be represented by the insurance industry. The existence of affordable insurance means that citizens of this State can live their lives, work and drive vehicles knowing that if they are injured potentially some of that loss can be shared around the community through insurance. This means that individuals and their families are not crushed financially by the loss of a breadwinner or by having to support a catastrophically injured relative from their own funds.
Without affordable insurance those who are injured would not be compensated and would be left to the social services or charity. Given the important public function served by insurance and its significant participation in the new Commission it is important that the insurance industry have confidence in the new Commission and its adherence to legal principle. We will work hard to gain this trust and confidence.
The task of creating a new tribunal is challenging, complicated and varied. One of the Brothers who once taught me said, “Gerard, the only tasks that are worth doing are the ones that are difficult or hard”, and I can tell you putting this Commission together was such a task. Not only were we bound by the terms of this legislation we were also mindful of ensuring that full effect has been given to Parliament’s intention in terms of how the tribunal is meant to work.
We have been much guided by the Council of Australasian Tribunals’ Framework for Tribunal Excellence. Suffice to say it has been no small undertaking as decisions taken on one matter almost inevitably will affect other areas of the Commission’s operations.
There are a number of people I will shortly thank for their assistance, counsel and wisdom which has meant that the new Commission can open on today’s date in accordance with the Parliament’s wishes. When you think of it though it’s been a significant undertaking in that it has all taken place while both organisations have continued to dispose of their usual workloads, and it has all been done while staff and members in both legacy institutions continue to work remotely.
I am much indebted to Minister Dominello and his staff, and in particular Matt Dawson and James Camilleri. There have been times over the past six months when certain things just had to happen lest the whole timetable fall behind and I always knew that I could depend on the Minister and his staff to get done whatever was needed to keep the establishment moving forward and they have been terrific to work with.
Likewise I owe a debt of gratitude to the Attorney General whose time I have been monopolising in the recent past with respect to a range of requests and appointments to the new tribunal.
To the Secretary of the Department of Customer Service, Em Hogan, I want to thank you and the staff of your office for all of their work firstly on the Act and the Regulations. Emma approved all of my requests without demur and has been very supportive of the entire undertaking. Her People and Culture Team have helped with a large recruitment effort which has been carried out in record time.
But in particular I pay tribute to the work of the Office of the Secretary, Dawn Routledge, Cheri Boxoen and Aaron Kim who, along with my Director of Policy Mr Wayne Wormald, were intimately involved in the production of the early drafts of the Act and the Regulations and were the important liaison group with the various stakeholders and the office of the Parliamentary draftsman. I am very pleased to say that what was intended and what was produced are in harmony.
I would also like to publicly convey my thanks to Carmel Donnelly, the CEO of the State Insurance Regulatory Authority. This new tribunal sees the dispute resolution functions in the motor accidents scheme transferred from the care and control of SIRA into the new Personal Injury Commission. In the best traditions of the public service Carmel and her team have been nothing but supportive and completely committed to a smooth transition and for that I am much grateful. As the regulator SIRA has an important role with regard to the oversight of both schemes and this will continue unaffected.
Now we come to the heavy lifting, and by this I mean the actual work of establishing the new tribunal. Whilst this has been a team effort involving a large number of staff, executives and consultants, there are a number of people whom I simply must single out for special mention.
The Project Management Office was formed soon after the passage of the legislation and has the day to day care and control of the myriad of tasks which as a matter of practicality had to be done for there to be a commencement today.
The project team was made up of Ryan Williams, my Associate Nyomi Gunasekera, Stephen Conn and Melodi Gorevski. They co-oped other staff and members, contractors and the Department for a number of discrete projects which had to be completed on time and on budget.
This has meant the planning and co-ordination of diverse tasks such as the identification and scheduling of various project streams, assistance in obtaining the SOORT determination in record time, the drafting of innumerable briefing notes to the Secretary to facilitate each new task, all of which activities were associated with the merging of two IT systems and the creation of a new website, which over last night’s barbecue I was confirmed that it was opened. New email addresses have been formed. And of course they were of great assistance to me in what must have been one of the most swift and efficient recruitment processes ever taken for new members.
I am especially grateful to the appointment panel members, Mary Maini, and Robert Sheldon SC from the New South Wales Bar, for not only allowing me to dominate a lot of their time during the process, but I was much assisted by their judgment and counsel.
I also give my heartfelt thanks to the leadership of both the Bar Association and the Law Society. Not only have both organisations been of great assistance during the whole process they have offered senior and experienced members to assist in various ways which we simply could not have done without. I look forward to working with both organisations in order to ensure that the new tribunal works well not only for their members but their members’ clients.
I also offer my great thanks to the Rule Committee. The Act provided for a statutory rule making body comprising of 11 members. Given the relatively short period between the passage of the Act and its commencement great pressure was placed upon the Rule Committee to produce a set of drafting instructions for the Parliamentary Counsel well ahead of commencement date. As you can appreciate all practitioners and litigants would have no little interest in the terms of the Rules to be applied to their cases.
I am much indebted to the time and skill of not only the Rule Committee but also to the Secretariat to the Committee which produced the papers and ideas for the Committee to do its work. The Secretariat was made up of legal officers from both the Workers’ Compensation Commission and the Dispute Resolution Service and I publicly thank Michael Wright, Parnel McAdam, Belinda Gamble, Heidi Elliott and Michelle Boyle. Today we have a set of Rules which will enable us to commence operations and to operate in a way which will meet the objects of the Act.
To the Commission’s brand new Division Heads, Rod Parsons and Marie Johns, I have been the beneficiary of all of your work and assistance in establishing this new Commission. Rod in particular has an encyclopaedia like knowledge of tribunal practice and some of the things that we could have done but wisely did not do is in no small way thanks to his experience. Marie too has been deeply involved in decision making administration of the third party scheme and she has been of tremendous assistance to me in this whole process.
About halfway through the process of establishing the new Commission we retained our new Principal Registrar, Marianne Christmann. Starting in a senior role at the best of times is challenging but starting in the middle of a rather large combination of two long-established entities with a deadline which could not be moved requiring multiple decisions every day was perhaps a baptism of fire to say the least. Marianne survived and has prospered and has significantly contributed to the fact that we can open the Commission’s doors today and she will be a terrific inaugural Principal Registrar of the new tribunal.
There are also many other people whose work has been essential for the establishment of the new Commission and I will mention a few. My thanks go to Anthony Ritchie, Stephen Thompson, Sarah Kallipolitis and Tina Kavadas for their herculean efforts in reappointing two very different IT platforms.
I thank Listya Atikasari for her job in putting together the new website which opened, as I said, last night.
Many months ago I tasked Geoff Cramp with the extremely important job of creating the financial operating model for the new Commission which would ensure that funds from each scheme are in fact attributed to only that scheme’s purpose. This will enable the Commission to account to the Parliament as the Act requires, and Geoff and his colleagues have done a splendid job in this regard.
Finally I want to thank the staff and members of the newly established Personal Injury Commission. Change is difficult at the best of times but everyone has pitched in when required and I think there is generally around the staff and members a great deal of excitement and buoyancy about our new undertaking. We have a skilled and dedicated group who are in the throes of creating a very modern tribunal which will serve the citizens of this State for years. Likewise we have a new set of members as well as some familiar faces.
Ultimately everything that has been done to establish the new tribunal has been to put the decision makers, whether legal or medical, in the best possible position to do justice to the litigants. Ultimately this Commission will be judged by the quality of its decision making, the fairness of how cases are heard and conducted, or resolved. This is how it should be and how the Commission will be accountable to those whom it serves.
The Workers’ Compensation Commission of New South Wales is now disbanded. The Personal Injury Commission is established and represents the next chapter in the evolution of this area of the law. The coming months and years promise to be interesting as we build out this new tribunal to provide justice to the citizens of this State.
Inaugural Ceremonial Sitting Video