Background

14.1 The Act presently provides that, on application, the Commission may issue a licence to carry on business as a workers’ compensation insurer or may refuse such an application.¹ The Commission may suspend or terminate the licence of an insurer or vary the conditions of the licence.² The Act also provides that the Commission may grant a licence to an employer as a self-insurer, with the same powers to suspend, terminate and to vary the conditions of a self-insurer’s licence as in the case of a licensed insurer^.3 De-licensing proceedings are instituted by the Registrar and are determined by the Commission. Reasons are required to be given and an appeal lies to the Supreme Court of New South Wales, Court of Appeal on fact and law.⁴

14.2 The Amendment Bill proposes that the power to issue licences to self-insurers and insurers should vest in the Board.⁵ The power to suspend or terminate a licence or to vary the conditions of a licence are also vested in the Board.⁶

14.3 Such powers are to be exercised by the Board on notice to the licensee, setting out the grounds upon which the Board proposes to take action. The Board is required to make due inquiry and give due consideration to such evidence as the licensee may submit and to such information, documents, particulars and other evidence as the Board may receive .⁷ The Board is required to give notice of the grounds for making a decision adverse to a licensee.⁸ There is an appeal from the Board to the new Compensation Court.^.9

14.4 Notably, there is no provision in the Amendment Bill for any appeal to the Supreme Court on fact and law. Presumably, the general right of appeal from the Compensation Court to the Supreme Court would operate, namely, an appeal limited to questions of law or the admission or rejection of evidence.¹⁰

Submissions

14.5 The only submission dealing with the question of licensing of insurers and self-insurers was the second submission of the Chairman of the Workers’ Compensation Commission.¹¹ However, this was principally directed to the question of whether there should be a separation of the Board and the court, it being asserted that there were merits in a continuation of the present system, so far as the supervision of insurers and self-insurers was concerned. It was asserted that the supervisory power over licensed insurers and self-insurers was more effectively exercised by the judges, and that transfer of this power to the Board would lead to a number of appeals against either refusal to license or cancellation of licences.

Issues Involved

14.6 Certain aspects of the proposed amendments may warrant reconsideration. They include the following.

• Neither the Act nor the Amendment Bill make specific provision for any appeal from a decision refusing to grant a license.
• The Amendment Bill provides that in the event of an appeal to the Compensation Court concerning a de-licensing matter, the court shall have regard only to the circumstances existing up to the time of the making of the decision appealed against.¹² Consideration should be given to whether there should, in certain circumstances, be a right to call additional evidence before the court.
• Consideration might also be given to whether there should be a general right of appeal to the Supreme Court from the Compensation Court on both fact and law in the case of licensing decisions rather than an appeal limited to questions of law or the admission or rejection of evidence.
• An appeal from the Board direct to the Supreme Court, Court of Appeal could be considered, as an alternative, by-passing the Compensation Court altogether.

14.7 We are of the view that consideration of these questions should be undertaken only in conjunction with a full review of the licensing provisions of the legislation which, by and large, have been preserved in their existing form subject to certain procedural changes. Such an inquiry is beyond the scope of this interim report, which is limited to changes in the legislation proposed by the Bill. We note. however, that the Insurance Council of Australia Ltd.¹³ has not raised objection to the procedural changes proposed by the Amendment till in relation to licensing and de-licensing.

Summary

14.8 Although we support the separation of functions of the Board and the court, and consider it appropriate that the Board, as the administrative arm, should be concerned with the supervision of the licensing provisions, we make no recommendations, at this stage, in relation to those proceedings. It would be premature to do so for the reasons advanced in the preceding paragraph.

FOOTNOTES

1. The Act, s.27.

2. The Act, ss.29(1), 29C.

3. The Act, s.18(1A).

4. The Act, s.29(3).

5. Amendment Bill, Schedule 4, Items (2), (5).

6. Amendment Bill, Schedule 4, Item (7).

7. Amendment Bill, Schedule 4, Item (7) (g).

8. Amendment Bill, Schedule 4, Item (9).

9. Ibid.

10. Court Bill, cll. 33, 34.

11. Schedule: Item 19.

12. Amendment Bill, Schedule 4, Item (9)(c).

13. Schedule: Item 20.