Merit Reviewer Code of Conduct

Personal Injury Commission Merit Reviewer Code of Conduct

Purpose

1. This Code of Conduct (Code) is issued by the President of the Personal Injury Commission (the Commission) of New South Wales under section 16 of the Personal Injury Commission Act 2020 (PIC Act).
2. Merit reviewers are engaged in work of significant public service. They consider applications for merit review on insurer internal review decisions and determine what the correct and preferable decision is having regard to the information before the merit reviewer.  The resolution of disputes between the parties can be life-changing for people injured at work or in motor vehicle accidents.  The successful resolution of a dispute also saves injured workers considerable stress, costs and delay in court proceedings.
3. This Code sets out principles of conduct and professional behaviour to guide merit reviewers in the performance of their statutory functions and to promote discussion and awareness of issues of conduct.
4. This Code also informs Commission users about the values, principles and standards of professional conduct expected of merit reviewers.
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 among merit reviewers.
6. This Code may be varied from time to time to ensure its relevance.

Definitions

1. The following definitions apply to this Code:
   1. Commission - refers to the Personal Injury Commission of New South Wales
   2. Commission Rules – refers to the rules approved by the Rules Committee of the Commission and adopted by the President.
   3. Confidential information – materials and information, both printed and electronic, that are provided to Merit reviewers in the course of their duties for the Commission are confidential unless they are otherwise available in the public domain, such as on the Commission’s website.
   4. Division Head – refers to Division Head, Workers Compensation Division.
   5. Enabling legislation – refers to the workers compensation legislation and the motor accidents legislation as defined in section 5 of the PIC Act.
   6. Member – refers to all members of the Commission including Presidential, non-Presidential and sessional members.
   7. Merit reviewer – refers to all persons appointed as Merit reviewers for the purposes and functions specified in the enabling legislation.
   8. PIC Act – means the Personal Injury Commission Act 2020.
   9. Procedural directions – Procedural directions assist the parties with processes required to carry out matters of procedure and of an administrative nature within the commission.
   10. Social media – websites and applications that enable users to create and share content or to participate in social networking.

Responsibility of the President and Division Head

1. It is the responsibility of the President and Division Head to assist merit reviewers to comply with this Code and to perform their responsibilities as merit reviewers, through the provision of appropriate training, leadership, advice and support.

Upholding the Objects of the PIC Act

1. The objects of the PIC Act are set out under section 3 and include:
   1. ensuring the Commission:
      1. is independent (s 3(a));
      2. is accessible, professional and responsive to the needs of its users;
      3. is open and transparent about its processes, and
      4. 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)).
2. Merit reviewers are expected to perform their duties and conduct themselves consistently with these objects.

General Responsibilities

1. Merit reviewers have the following general responsibilities, both in their functions as a merit reviewer 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 high standards of ethics, integrity and honesty;
   3. to maintain high professional standards of conduct.

Commission Values

12.  In performing their duties, Mediators 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.  Merit reviewers should demonstrate respect for the law in the performance of their functions, including demonstrating an awareness and understanding of statutory obligations, rules, procedural directions and procedural requirements imposed by the Commission.

14. Merit reviewers should also demonstrate respect for the law in their private lives.

Conflicts of Interest

15. Merit reviewers 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 merit reviewers;
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 merit reviewer 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 mediation, 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 merit reviewers;
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, Workers Compensation Scheme or CTP Scheme;
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 Division Head and are to be treated with confidence.

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

Independence

17. Merit reviewers are to perform their duties independently, free from external influence and free from fear of adverse consequences.

18. Merit reviewers should not allow themselves to be put in a position where their independence may be compromised or perceived to be compromised.

19. If merit reviewers have a professional legal practice in addition to being merit reviewers, 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 Members or Commission decision-makers of the same division as the merit reviewer. 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

20. Merit reviewers 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 for the performance of their duties.

21. Merit reviewers are to:

1. conduct merit reviews with due rigour, diligence and intellectual honesty;
2. perform their duties in the Commission in a timely and appropriate manner with a view to ensuring that the Commission’s processes are efficient, effective and inexpensive;
3. undertake and participate in professional development and Commission training programs to promote accurate and consistent decisions;
4. keep informed of developments in substantive and procedural matters within the jurisdiction of the Commission relevant to their duties;
5. support and encourage, where possible, the professional development of colleagues;
6. become proficient in the use of technology including the Commission’s electronic case management system, digital provision of documents and the Commission’s extranet.

Integrity

22. Merit reviewers should act with honesty, fairness, respect and commitment.

23. Merit reviewers should:

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 merit reviewer 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. refrain from conduct which would bring the Commission and/or merit reviewers into disrepute.

Accountability and Transparency

24. Merit reviewers 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 Complaints Policy;
3. regularly review and evaluate their own performance and capacity.

Respect for Persons

25. Merit reviewers 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, interpreters, representatives, Commission staff and others with whom merit reviewers have to deal.

26. Merit reviewers should endeavour to understand and be sensitive to the needs of persons involved in proceedings before the Commission, including:

1. demonstrating patience, courtesy and respect in their own conduct and demeanour;
2. communicating in a clear, plain manner so as to be understood by the parties;
3. being aware of and responsive to cultural and other sensitivities in relation to forms of address, conduct and dress.

27. The Commission recognises the importance of fairness, dignity and respect for others in the workplace. Each person in the workplace, including Commission staff, Members, mediators and merit reviewers, 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.

28. Merit reviewers must be familiar and comply with all relevant policies in relation to workplace behaviour.

Privacy and Confidentiality

29. Otherwise than in the exercise of Commission functions, merit reviewers must comply with:

1. Information Protection Principles in Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998;
2. Health Privacy Principles in Schedule 1 of the Health Records and Information Privacy Act 2002.

Particular Issues

Gifts, Benefits and Hospitality

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

31. Merit reviewers may seek advice from the Division Head in relation to social invitations received and whether they should be declined.

32. In circumstances where gifts cannot be or it is inappropriate for a gift to be declined, the Principal Registrar should be informed so that it may be recorded in the Commission’s gift register. The gift may be retained, donated to a charity, used for the benefit of merit reviewers or staff generally or publicly display in the Commission’s premises may be appropriate, depending on the circumstances.

Public Engagements

33. Merit reviewers should inform the Division Head of any presentations being given in relation to the personal injury dispute resolution schemes.

34. Merit reviewers must seek approval from the Division Head to deliver presentations, papers and publications about the PIC practice and procedure, PIC Act and enabling legislation.

Committee Membership and Other Groups

35. Merit reviewers should inform the Division Head of any positions held on any committee, board or other group and must withdraw from any discussions about the operation of the PIC Act or its enabling legislation.

36. The Principal Registrar may keep a register of positions held by merit reviewers.

Social Media

37. Merit reviewers 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.

Corrupt Conduct

38. If a merit reviewer becomes aware of an instance of behaviour that could be corrupt conduct, maladministration, or criminal conduct, relating to the Commission, the merit reviewer should report it promptly to the President or Division Head, and/or, if appropriate, to the Independent Commission Against Corruption. (Refer to section 8 of the Independent Commission Against Corruption Act 1988 for guidance regarding the general nature of corrupt conduct.)

Post Service Conduct

39. After ceasing to be a merit reviewer of the Commission, it is expected that a former merit reviewer:

1. would continue to behave in a way that upholds the integrity and good reputation of the Commission;
2. would not use or take advantage of confidential information obtained in the course of his or her duties as a merit reviewer.

Complaints and Concerns

40. Complaints to the Commission in relation to merit reviewers will be dealt with as outlined in Commission’s Complaints Policy.

41. Merit reviewers may raise with the Division Head any concerns regarding other merit reviewers, Commission Members and staff, and Commission practice and procedure.

Protection of Merit Reviewers

42. Anything done or omitted to be done by a merit reviewer in exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation does not, if the thing was done or omitted to be done in good faith, subject the merit reviewer personally to any action, liability, claim or demand.

43. A merit reviewer is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which the merit reviewer was involved in the course of exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation.

44. Merit reviewers may seek advice, guidance and legal assistance from the Division Head in relation to any external complaint, action, request or demand made on or against them in relation to undertaking their functions as a merit reviewer.

Compliance with this Code

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

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

His Hon Judge Gerard Phillips

President

31 March 2021