Member Code of Conduct

Personal Injury Commission Code of Conduct

1.   This Code of Conduct is issued by the President of the Personal Injury Commission of New South Wales under section 16 of the Personal Injury Commission Act 2020. It applies to all Members in the exercise of their functions under the enabling legislation.

2.   This Code may be reviewed from time to time to ensure its relevance.

Purpose

3.   Members are engaged in work of significant public service. They are responsible for hearing and deciding cases involving citizens who have been injured at work or on the road.

4.   This Code sets the standards of conduct required of Members in the performance of their statutory functions and assists them in identifying and resolving ethical issues as they may arise.

5.   Compliance with this Code will enhance public confidence in the Commission and its processes and is an important aspect of the Commission meeting the objects of the PIC Act. It is also designed to promote collegiate, professional and harmonious relations between Members.

6.   A further purpose of this Code is to provide Commission users with information by reference to which to assess the conduct of Members.

Definitions

7.   The following definitions apply to this Code:

1. PIC Act – means the Personal Injury Commission Act 2020.
2. Commission – refers to the Personal Injury Commission of New South Wales.
3. Enabling legislation – refers to the workers compensation legislation and the motor accidents legislation as defined in section 5 of the PIC Act.
4. Member – the term member applies to all members of the Commission including Presidential, Non-Presidential and Sessional Members.
5. Commission Rules and Procedural Directions – refers to the practice and procedure to be followed in proceedings before the Commission.
6. Confidential information – materials and information, both printed and electronic, that are provided to Members in the course of their duties for the Commission are confidential unless they are otherwise available in the public domain, such as the Commission’s website. For the avoidance of doubt, Commission Member’s Handbook is considered a confidential document.
7. Social media - websites and applications that enable users to create and share content or to participate in social networking.
8. It is the responsibility of the President, together with the Division Heads, to assist Members to comply with this Code and to perform their responsibilities as Members through the provision of appropriate training, leadership and support.

Responsibility of the President and Heads of Divisions

8.    It is the responsibility of the President, together with the Division Heads, to assist Members to comply with this Code and to perform their responsibilities as Members through the provision of appropriate training, leadership and support.

Upholding the Objects of the PIC Act

9.    The objects of the PIC Act are set out under section 3 and include:

1. ensuring the Commission:  

   i.   is independent (s 3(a));

   ii.  is accessible, professional and responsive to the needs of its users;

   iiii. is open and transparent about its processes;

   iv.  encourages early dispute resolution (s 3(b)).

2. enabling the Commission to resolve the real issues in proceedings, justly, quickly, cost effectively and with as little formality as possible (s 3(c)).
3. ensuring that the decisions of the Commission are timely, fair, consistent and of a high quality (s 3(d)).
4. promoting public confidence in the decision-making of the Commission and in the conduct of its Members (s 3 (e)).

10.  Members are to perform their duties and conduct themselves consistently with these objects.

General Responsibilities

11.   Members have the following general responsibilities, both in their activities as a Member and in their personal activities:

1. to uphold the law, including being aware of and complying with legislation dealing with privacy, discrimination and corruption;
2. to uphold the highest standards of integrity, truthfulness, and honesty;
3. to act at all times in a way that is consistent with the promotion of a collaborative and collegiate culture among the Members of both the Motor Accidents Division and Workers Compensation Division of the Commission.

Commission Values

12.   In performing their duties, Members should at all times strive to give effect to the following values (derived from “A Guide to Standards of Conduct for Tribunal Members” issued by the Administrative Review Council).

Respect for the Law

13.   Members must, while acting as a Member, and while performing functions associated with membership, demonstrate respect for all aspects of the law.

14.   In particular, Members must:

1. at all times while performing Commission functions comply with the law in relation to the conduct of proceedings, the determination of matters and interactions with other Members, Commission staff and Commission users;
2. ensure that all decisions and determinations are legally well founded.

Fairness

15.   Members are to make unbiased, impartial decisions and to give all parties the opportunity to put their case.

16.   More specifically, Members must:

1. apply the law equally, and act impartially in the performance of their decision-making functions, so that their actions do not give rise to a reasonable apprehension of bias or, amount to actual bias;
2. maintain their independence in the discharge of their duties. Notwithstanding any matter within this Code, Members must satisfy themselves that no conflict exists in the discharge of their duties to the Commission. Members must advise the parties of any matter or circumstance which might give rise to bias or conflict of interest or a perception of bias or conflict of interest and determine whether in the circumstances it is appropriate to continue to conduct or determine the proceedings;
3. refrain, other than during a hearing or with the consent of the Division Head, from any communication (either oral or in writing) or association during the course of proceedings with a party, legal representative or witness in the absence of the other party or parties or their representatives;
4. abide by the principles of procedural fairness, in particular, by ensuring that parties have a reasonable opportunity to present their case and to answer the case against them;
5. be aware of and address appropriately, any barriers which are likely to impede parties in presenting their case. Such barriers may include, but are not limited to, language, cultural background, lack of literacy, disability and self-representation.

Conflicts of interest

17.    Members must:

1. if engaged in another profession, occupation or business, take care to ensure that those activities do not conflict with or undermine the discharge of their responsibilities as Members;
2. refrain from partisan political activity which may be considered related to the work of the Commission or which may impinge upon the perception of impartiality of the Member or the Commission;
3. decline invitations to functions by legal firms, insurance companies, barristers’ chambers or any other relevant stakeholder body unless approval is given by the President;
4. never provide comment to the media on matters that are before the Commission for assessment or determination, or have been dealt with by the Commission;
5. if providing comment to the media on a matter unrelated to their Commission functions and responsibilities, they should not identify themselves as Members;
6. refrain from holding positions on any committee, board or other group whose purpose includes advocacy on behalf of the legal profession or in relation to changes that may directly or indirectly affect the operation of the Commission or CTP and Workers Compensation Schemes;
7. refrain from personally participating in any commentary, advocacy or political activity pertaining to the PIC Act or its enabling legislation;
8. declare any close personal relationships or pecuniary interests that may give rise to a possible conflict of interest. Such declarations are to be made to the relevant Division Head and are to be treated with confidence.

18.   Members must satisfy themselves that no conflict exists in the discharge of their duties to the Commission. Where the Member perceives a conflict may exist, they must immediately report it to the Division Head and obtain instructions on how the matter should proceed.

Independence

19.   Members are to perform their duties independently, free from external influence and free from the fear of adverse consequences.

20.   Members should not allow themselves to be put in a position where their independence may be compromised or be perceived to be compromised.

21.   If Sessional Members have a professional practice in addition to being Members, they:

1. cannot appear before the Commission as a representative of a party or other person;
2. cannot advise individuals or bodies concerning Commission proceedings or potential proceedings involving those individuals or bodies;
3. cannot act for or against or provide services to individuals or bodies who are litigants before them in the Commission; and
4. cannot challenge or defend the decisions of other Members or Commission decision-makers of the same division as the Member. Such challenges include (but are not limited to) appeals against a Member’s decision to a Presidential Member, appeals against a Medical Assessor’s medical assessment and any applications made to a higher court.

Diligence and Timeliness

22.   Members are to be diligent and timely in the performance of their duties. They should take all reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary to the performance of their duties.

23.   In particular, Members must:

1. conduct proceedings and make decisions with due rigour, diligence and intellectual honesty;
2. perform their duties in the Commission so as to resolve matters in a timely and appropriate manner with a view to ensuring that the Commission’s proceedings are efficient, effective and inexpensive;
3. undertake and participate in professional development and Commission training programs to enhance relevant knowledge and skills;
4. keep informed of developments in substantive and procedural matters within the jurisdiction of the Commission relevant to their duties;
5. ensure decisions are consistent with legal authority, any relevant Commission rules and Procedural Directions and guidance material, or provide detailed reasons where they are not followed;
6. support and encourage, where possible, the professional development of colleagues;
7. become proficient in the use of technology including the Commission’s electronic case management system, digital provision of documents, the Commission’s intranet and extranet, sound recording facilities, conducting proceedings by audio-visual link and other technological developments implemented by the Commission.

24.   In order to promote the efficient conduct of proceedings, Members should:

1. clearly identify the facts and issues in dispute;
2. facilitate the resolution or narrowing of issues in dispute, where appropriate;
3. adjourn proceedings only when necessary in the interests of justice and fairness and in accordance with Commission rules and Procedural Directions;
4. ensure that any deferral of matters and applications do not unnecessarily delay the final determination of proceedings;
5. ensure that evidence is confined by reference to the facts and issues in dispute, and that it is given as concisely as is reasonably possible.

Integrity

25.   Members, in carrying out their functions, are to act honestly and truthfully.

26.   In particular, Members must:

1. not knowingly take advantage of or benefit from information, not publicly available, obtained in the course of performing their functions;
2. not use their position as a Member improperly to gain or seek to gain any advantage or benefit for themselves or any other person;
3. be scrupulous in the use of Commission resources;
4. not disclose any confidential information otherwise than as permitted by law;
5. in private and professional life, refrain from conduct which would bring the Commission into disrepute.

Accountability and Transparency

27.   Members are accountable for their decisions and actions taken as Members and have a responsibility to be open and frank about their decisions, actions and inaction in relation to their duties.

28.   In particular, Members are to:

1. participate in performance evaluations conducted by the Commission;
2. co-operate fully in complaint investigations carried out by the Commission in accordance with the Access and Equity Service Charter.
3. regularly review and evaluate their own performance and capacity.

Respect for Persons

29.   Members are to conduct all interactions in the course of their functions in the Commission in a manner that is patient, courteous and respectful of all parties, witnesses, representatives, staff and others with whom Members have to deal.

30.   In particular, Members are to:

1. demonstrate patience, courtesy and respect in their own conduct and demeanour;
2. communicate in a clear, plain manner so as to be understood by the parties;
3. control the proceedings in such a way as to create an environment in which participants can and are encouraged to treat other participants courteously and respectfully;
4. be aware of and responsive to cultural and other sensitivities in relation to forms of address, conduct and dress.

31.   The Commission recognises the importance of fairness, dignity and respect for others in the workplace. Each person in the workplace, including staff and Members, should have a safe and secure place in which to work. The Commission does not tolerate inappropriate workplace behaviour, which includes bullying, harassment, sexual harassment, other forms of unlawful discrimination, vilification and violence.

32.   Members must be familiar and comply with all relevant policies in relation to workplace behaviour.

Privacy and confidentiality

33.   Members and those subject to their direction and control must respect the confidentiality of the matters that are provided for assessment and determination.

34.   Otherwise than in the exercise of Commission functions, Members must comply with the Information Protection Principles in Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998.

35.   Otherwise than in the exercise of Commission functions, Members must comply with the Health Privacy Principles in Schedule 1 of the Health Records and Information Privacy Act 2002.

36.   Members must not distribute, pass on or otherwise share confidential information with non-Members of the Commission.

Particular Issues

Gifts, Benefits and Hospitality

37.   Where gifts or benefits are offered, or social invitations extended, by parties or representatives in Commission proceedings, to Members, these should be declined.

38.   In circumstances where gifts cannot be or it is inappropriate for a gift to be declined, it should be handed to the Division Head for inclusion in the Commission’s gift register and appropriate disposition. Donating the gift to a charity, using the gift for the benefit of Members or staff generally or publicly displaying the gift in the Commission’s premises may be appropriate, depending on the circumstances.

Public Engagements

39.   Members must obtain written permission from the President before undertaking, either as Members or in the course of their private practice, any public speaking engagements, delivery of seminar papers and the writing of any articles or papers in respect to the PIC, PIC Act, enabling legislation or that may otherwise be relevant to the business of the Commission.

Social Media

40.   Members must ensure that they do not engage in any of the following activities on social media:

1. create content that is relevant to the business of the Commission.
2. discuss or share posts on topics that directly or indirectly reflect on the practices and operations of the Commission.
3. engage with any content that falls within the above definitions in non-written ways including but not limited to “liking” or “reposting” such content.

Secondary Employment

41.   All full-time Members are to seek approval from the President before undertaking secondary employment.

Corrupt Conduct

42.   If a Member becomes aware of an instance of behaviour that could be corrupt conduct, maladministration, or criminal conduct, relating to the Commission, the Member should report it promptly to the Division Head or the President, and/or, if appropriate, to the Independent Commission Against Corruption.

Post Service Conduct

43.   After ceasing to be a Member of the Commission, it is expected that a former Member:

1. would continue to behave in a way that upholds the integrity and good reputation of the Commission;
2. would not appear before the Commission as a representative where to do so would contravene the Barristers’ Rules, the Solicitors’ Rules or any other similar applicable professional rules;
3. would not use or take advantage of confidential information obtained in the course of his or her duties as a Member.

Complaints

44.   Complaints in relation to Members will be dealt with as outlined in Access and Equity Service Charter.

Compliance with this Code

45.   If a Member does not comply with this Code, the President may direct the Member to take specified action to rectify their conduct and further work may not be allocated to the Member until the breach is rectified. In cases of serious breaches, the President may suspend the Member’s appointment and/or refer a matter to the Attorney General.

46.   This Code does not stand alone but forms part of the accountability framework within which both the Commission and the Members operate. It is complementary to the Commission’s procedures and policies, including the Member professional development framework and the Commission’s complaints process.

His Hon Judge Gerard Phillips

President

1 March 2021